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CONTEST 
PROCEDURE 



PRACTICE BEFORE UNITED 

ST A TES DISTRICT LAND 

OFFICES 


BY 

O. C GIBBS, L. L. M. 

OF THE 

DISTRICT OF COLUMBIA BAR 
(Formerly of the General Land Office) 


Copyright 1912 
by 

O. C. GlBBS 



BISMARCK: 

TRIBUNE, STATE PRINTERS AND BINDERS 

1912. 



# A 



o o 



€C!.A312444 



TABLE OF CONTENTS 



Page 

Preference Right 3 

Defiinition 3 

Classes of Entries in which awarded 3 

Distinction between entries and filings or applications 4 

Summary 4 

Contests 5 

Definition 5 

Rules governing proceedings 5 

Proceedings Before Registers and Receivers 5 

Initiation of Contests 5 

Parties contesting 5 

Entries subject to contest 5 

Disposition of cases initiated by parties without interest.. 6 

Application to Contest 6 

Joinder of parties (Contestees) 6 

Description of land 6 

Proceedings to acquire title 6 

Grounds of Contest 7 

Classes of charges 7 

Statement of law under which title is to be acquired 8 

Execution and filing of application 8 

Corroborating affidavits 9 

Execution of 9 

Allowance of application, jurisdiction 9 

Contest Notice 10 

Contents 10 

Issuance of 10 

Rejection of Contest 10 

Service of Notice 11 

Personal 11 

Proof of 12 

Abatement of Contest 12 

New Application 13 

Serving Notice by Publication 13 

When allowed 14 

Affidavit as basis for 14 

Order for Publication 14 

Publishing 15 

Miailing 16 

Posting 16 

Proof of Publishing 16 

Proof of Mailing 16 

Proof of Posting 17 

Defective Service 17 

Cases Saved from Abatement 17 

Answer by Contestee 18 

Motion to Set Aside Proof of Service 18 

Answer by Next Friend 19 



IV TABLE OF CONTENTS. 



Page 

Failure to 20 

Service of 19 

Re-opening of Case 20 

Default after Hearing Ordered 20 

Date and Notice of Trial 20 

Notice of Hearing 21 

Place of Service of Papers 21 

Continuance 21 

Authority of Officers 22 

By Stipulation 22 

On Application 22 

Discretion of Officers 22 

Second Continuance 23 

Depositions on Interrogatories hZ 

On Stipulation '. 24 

On Application 24 

Service olf Notice 24 

Objections to 25 

Taking of Depositions 25 

Return of Commission 25 

Depositions on Oral Examination 26 

On Stipulation 26 

On Application . . . . 26 

Service of Notice 26 

Objections to 27 

Taking of Depositions 27 

Return of Commission 27 

Taking of Testimony before Register and Receiver 27 

Trials 28 

Burden of Proof 29 

Examination of Witnesses 29 

Relevancy of Evidence ... 30 

Transcript of Testimony 30 

Demurrer of Evidence 30 

Decision by Register and Receiver 31 

New Trial 31 

Motion for 32 

Service of 32 

Reply to 32 

Reply to 33 

Allowance-Denial 33 

Final Proof, Pending Contest . : 33 

Appeal to Commissioner 33 

Notice of 34 

Service of Briefs and Papers 34 

Costs, Apportionment of 35 

Preparation and Service of Notices 35 

Appeal from Decision Rejecting Application to Enter Public Land 36 

Proceedings Before Surveyors General 37 

Proceedings Before the Commissioner of the General Land Office 

and the Secretary of the Interior 37 

Examination and Argument 37 

Service of Commission's Decision 37 

Rehearing of Commissioner's Decison .... 37 

Motions 37 

Appeal from the Commissioner to the Secretary 38 

Notice of 38 



TABLE OF CONTENTS. 



Page 

Service of Briefs and Papers 38 

Certiorari 39 

Defective Appeal 39 

Oral Argument Before the Secretary 39 

Rehearing of Secretary's Decision 39 

Motion for 40 

Service of 41 

Reply 41 

Motion for Review 42 

Motion for Re-Review 42 

Supervisory Powers of Secretary 42 

Attorneys and Agents 42 

Admission to Practice 42 

Recognition of 43 

Service of Notices 43 

Intervention 43 

Encumbrancer 44 

Transferee 44 

Deserted Wife 44 

Junior Contestant 44 

Notice of Cancellation or Preference Right 44 

Relinquishment Pending Contest 45 

Adverse Proceedings by the Government . . *. 45 

Regulations Governing 46 

Service of Notice 47 

Answer 47 

Notice of Hearing 47 

Subsequent Proceedings 47 

Service of Papers 47 

Rule to Show Cause 47 

Forms for Use in Proceedings (See Appendix) 48 



(References are to pages), 



Abatement, contest, 12, 17. 

cases saved from, 17. 

procedure in, 18. 
Address, 

contestant, 8. 

contestee, 6, 19. 
Admission to Practice, 

attorneys and agents, 42, 43. 
Adverse Proceedings by Government, 45. 

regulations governing, 46 

initiations of, 45. 

default of contestee, 47. 

notice of, 47, 49. 

notice of hearing, 47, 54. 

subsequent proceedings, 47. 
Affidavit, 

corroborating application, 9, 48. 
execution of, 9. 
form, 48. 



VI TABLE OF CONTENTS. 



Affidavit and Motion, 

Commission to Take Depositions on Interrogatories (form), 55. 

Commission to Take Depositions on Oral Examination (form), 57. 
Affidavit and Order, 

Publication of Notice of Contest (form), 51. 
Agent (see attorney). 
Allowance of Contest, 9. 

Jurisdiction of Local Officers to, 10 

Second Application, 13. 
Allowance of New Trial, 33. 
Answer to Contest, 18. 

by whom, 19 

execution of, 19. 

service of, 19. 

form of, 53. 

proof of service of, (form), 53. 

failure to, 20. 
Appeal to Commissioner, 

from rejection of contest, 10. 

in default cases, 34. 

failure to, 34. 

notice of, 34. 

specification of error, 34. 

dismissal of, 34. 

service of notice of, 34. 

argument, 34. 

reply, 34. 

response, 34. 

from rejection of application to enter, 36. 
Appeal to Secretary, 38. 

when allowed, 38. 

notice of appeal, 38. 

reply, 38. 

response, 38. 

certiorari, 39. 

defective. 39. 
Application to Contest, 6. 

form of, 48. 

address of contestant, 8. 

address of contestee, 6. 19. 

allowance of, 9, 10. 

appeal from rejection of, 10. 

charges of contest, 7. 

corroboration of, 9. 

description of land, 6. 

execution of, 8. 

parties to be joined, 6. 
administrator, 6. 
encumbrancers, 6. 
entryman, 6. 
heirs, 6. 
transferees, 6. 

preparation and filing of, 8. 

proceedings to acquire title, 6, .7 

rejection of, 10. 

second, 13. 
Application to Enter, 36. 



TABLE OF CONTENTS. VII 



rejection of, 36. 
causes for, 36. 
appeal from, 36. 
Argument. 

on appeal to Commissioner, 37. 

oral before Commissioner, 37. 

on appeal to secretary, 39. 

oral before secretary, 39. 
Attorney, 42, 43. 

admission to practice, 42, 43. 

authority to represent party (forms) 49, 50. 

misconduct of, 43. 

oath of office, 43. 

power of, to represent party (form), 50. 

regulations governing recognition of, 42. 
Authority to Take Testimony (form), 54. 

B. 

Furden of Proof, 29. 

C. 

Cancellation, 

on default, 20. 

notice of, 44. 
Cause, Rule to Show, 

ex parte cases, 47. 
Certiorari, 

to secretary, 39. 
Coal Entry, 

preference right on cancellation of, 3. 
Commission, 

Affidavit and Motion for to Take Depositions on interrogatories 
(form), 55. 

form of, 56. 

issuance of, 25. 

return, 25, 56. 

Affidavit and Motion for to take Depositions on Oral Examination 
(form), 57. 

form of, 57, 58. 

issuance of, 27. 

return, 27, 58. 
Commissioner, 

Appeal to, 

from decision of local officers, 33, 34. 

from rejection of contest, 10, 11. 

from rejection of application to enter, 36. 

argument before, 37. 

decision of, 37. 

motions before, 37. 

proceedings before, 

rehearing of decision (abolished), 37. 

service of decision of, 37. 
Contest, 

abatement of, 12, 17. 

affidavit and motion for publication of notice of (form), 51. 

answer to, 18. 
by whom, 19. 
service of, 19. 

allowance of, 9, 10. 



YTTT TABLE OF CONTENTS 

appeal from rejection of, 10. 

application to, 6, 48. 

before surveyors general, 37. 

charges of, 7. 

corroborating affidavit, 9, 48. 

costs of, 35. 

defective service, 17. 

defined, 6. 

disposition of, filed by party without interest, 6. 

entries subject to, 5. 

failure to answer, 20. 

government, 45. 

final proof pending, 33. 

initiation of, 5. 

motion to set aside proof of service of, 18. 

notice of, 10, 49, 51. 

notice of, 10, 49, 51. 

contents of notice, 10. 

issuance of, 10. 
notice of, for personal service (form), 49. 
notice of, for publication (form), 51. 
notice of rejection of, 10, 50. 
persons who may initiate, 5. 
personal service of notice of, 11. 

by whom, 11. 

parties to be served, 11. 

how made, 11, 12. 

proof of, 12, 49. 
preparation of application, to, 6, 7, 8. 
rejection of, 10, 50. 
relinquishment pending, 45. 
saved from abatement, 17. 

procedure in, 18. 
second application, 13. 
service of notice, generally, 11. 
service of notice by publication, 13. 

publishing notice, 15, 16. 

mailing notice, 16. 

posting notice, 16. 

proof of publication, 16, 52. 

proof of mailing, 16, 52. 

proof of posting, 17, 53. 
regulations governing proceedings, 5. 
Contestant, 
address, 8. 
default of, 21. 
Junior, intervention by, 44. 
Contestee, 

address, 6. 
answer by, 18, 53. 
default of, 20. 
parties to be joined as, 6. 
Continuance, 21. 

authority of officers to grant, 22. 
by stipulation, 22. 
on application, 22. 
showing required, 22. 



TABLE OF CONTENTS ix 



United States cases, 23. 

second continuance, 23. 
Corroboration, 9. 

of contest application, 9, 48. 
Costs, 35. 

chargeable by register and receiver, 28, 35. 

chargeable by officers taking testimony, 28. 

depositions taken on oral examination, 28, 35. 

excessive not ipermitted, 35. 

in government cases, 35. 

testimony taken on order of register and receiver, 28. 

security for, 35. 

when settlement established by contestant, 35. 

swearing of witnesses, 35. 

transcribing of testimony, 35. 
Cross-Interrogatories, 

service and filing of, 25. 



Decision, , 

Register and Receiver, 

appeal from, 34. 

on default, 20, 47. 

notice of, 31. 

service of, 31. 

rejecting contest, 10. 
Commissioner, 

appeal from, 38. 

service of, 38. 
Secretary, 

service of, 39. 

motion for rehearing of, 39. 
Default, 

contestant, 20, 22. 
contestee, 20, 22, 47. 
Defective Service, 

notice of contest, 17. 
Demurrer to Evidence, 30, 31. 
Depositions, 

notice of intention to take on interrogatories, 24, 54. 

affidavit and motion for commission to take on interrogatories, 24, 55 

commission to take on interrogatores, 25, 56. 

notice of intention to take on oral examination, 26, 57. 

affidavit and motion for commission to take on oral examination, 

26, 57. 
commission to take on oral examination, 27, 58. 
On Interrogatories, 23. 

by stipulation, 24. 

on application, 24. 

service and filing of papers, 24, 25. 

cross-interrogatories, 25. 

objections to taking, 25. 

issuance of commission, 25. 

taking of depositions, 25. 

return of commission, 25, 26. 
On Oral Examination. 26. 



TABLE OF CONTENTS 



by stipulation, 26. 
on application, 26. 
service and filing of papers, 27. 
objections to taking, 27. 
issuance of commission, 27. 
taking of depositions, 27. 
return of commission, 27, 58. 
costs of, 27. 
Desert Entry, 

preference right on cancellation of, 3. 
Deserted Wife, 

intervention by, 44. 
Disbarment, 

attorneys and agents, 43. 
Dismissal, 

appeal to Commissioner, 35. 
appeal to Secretary, 38. 



Encumbrancer, 

intervention by, 44. 
Entry, 

cancellation of on default, 20. 

defined, 4. 

distinguished from filing or application, 4. 

subject to contest, 5. 
Error, 

specification of on appeal, 34. 
Evidence, 

established rules followed, 29. 

demurrer to, 30. 

relevancy of, 30. 
Examination of Witnesses, 29. 
Exclusion of Witnesses, 29. 
Ex Parte Cases, 

rule to show cause. 47. 



Failure to answer, 20. 

Failure to Appeal, 34. 

Final Proof Pending Contest, 33. 

Forms, 

Affidavit and Motion for Commission to Take Depositions on Inter- 
rogatories, 55. 

Affidavit and Motion for Commission to Take Depositions on Oral 
Examination, 57. 

Affidavit and Order for Publication of Notice of Contest, 51. 

Answer by Contestee, 53. 

Application to Contest, 58. 

Authority to Take Testimony, 54. 

Authorization (attorney or agent) to represent party, 49. 

Commission to Take Depositions on Interrogatories, 56. 

Commission to Take Depositions on Oral Examination, 58. 

Notice of Adverse Proceedings by Government, 59. 

Notice of Contest for Personal Service^ 49. 

Notice of Contest for Publication, 51. 

Notice of Hearing, 54. 



TABLE OF CONTENTS xi 



Notice of Intention to Take Depositions on Interrogatories, 54. 

Notice of Intention to Take Depositions on Oral Examination, 56. 

Notice of Rejection of Contest, 50. 

Power of Attorney (attorney or agent) to represent party, 50. 

Proof of Mailing, Notice of Contest, 52. 

Proof of Posting, Notice of Contest, 53. 

Proof of Publication, Notice of Contest, 52. 

Subpoena, 59. 



G. 

Government Contests, 45. 



Hearing, 

before register and receiver, 29. 

before surveyors general, 37. 

notice of, 21, 54. 

notice of, adverse proceedings by government, 47, 54. 

service of notice of, 21. 

burden of proof, 29. 

evidence, rules governing, 29. 

examination of witnesses, 29. 

exclusion of witnesses, 29. 

noting of objections, 30. 

demurrer to evidence, 30. 

transcript of testimony, 30. 

decision by register and receiver, 31. 

notice of decision, 31. 
Homestead Entry, - 

preference right on cancellation of, 3. 

I. 

Initiation of Contest, 5. 
Interrogatories, 

Notice of Intention to Take Depositions on, 24, 54. 
Affidavit and Motion for Commission to Take Depositions on, 24, 55. 
Commission to Take Depositions on, 25, 56. 
Depositions on, 23. 
by stipulation, 24. 
on application, 24. 
service and filing of papers, 24, 25. 
cross-interrogatories, 25. 
objections to taking, 25. 
issuance of commission, 25. 
taking of depositions, 25. 
return of commission, 25, 56. 
Intervention, 

Deserted wife, 44. 
encumbrancer, 44. 
junior contestant, 44. 
transferee, 44. 
Issuance of Commission, 

to take depositions on interrogatories, 25. 
to take depositions on oral examinations, 27. 
Issuance of Notice of Contest, 10. 



XII TABLE OF CONTENTS 



Junior Contestant, 

intervention by, 44. 
Jurisdiction, 

of register and receiver to allow contests, 9, 10. 

how vested, 11. 

when question of may be raised, 20. 

M. 

Mailing of Notice of Contest, 

proof of (form), 52. 
Mineral Entry, 

preference right on cancellation of, 3. 
Misconduct, 

attorneys and agents, 43. 
Motion, 

to set aside proof of service, 18. 
for continuance, 22. 

showing required, 22. 

when to make, 22. 

second, 23. 

United States cases, 23. 
for new trial, 32. 

grounds for, 32. 

showing required, 32. 

service of, 32. 

allowance or denial, 33. 
before Commissioner, 37. 

for rehearing of Secretary's decision, 39, 40, 41. 
for review of Secretary's decision (abolished), 42. 
for re-review of Secretary's decision (abolished), 42. 

N. 

New Trial, 

objection to, 33. 
Notice, 

adverse proceedings by government, 47, 59. 
appeal to Commissioner, 33. 
appeal to Secretary, 38. 
cancellation, 44. 
contest, 10. 

for personal service (form), 49. 
service of, 11. 
parties to be served, 11. 
by whom, 11. 
how made, 11. 
proof of service, 12, 49. 
for publication (form), 51. 
service by, 13. 
publishing of notice, 15, 16. 
mailing, 16. 
posting, 16. 

proof of ipublication, 16, 52. 
proof of mailing, 16, 52. 
proof of posting, 17, 53. 
Decision, 

register and receiver, 31. 



TABLE OF CONTENTS XIII 



Commissioner, 37. 

Secretary, 39. 
Hearing. 21, 47, 54. 
Intention. 

to take depositions on interrogatories 24, 54. 

to take depositions on oral examination, 26, 57. 
Motion for rehearing of Secretary's decision, 39- 40, 41. 
Preference Right, 44. 
Rejection of Contest, 10, 50. 
Notices, 

not specifically provided for, 36. 
preparation and service of, 35, 43. 



Objection, to, 

Depositions and Interrogatories, 25. 
Depositions on Oral Examination, 27. 
Introduction of Evidence, noting of, 30. 
Motion for New Trial, 33. 
Officers, 

authorized to take, 

depositions on interrogatories, 24, 25. 

depositions on oral examination, 26. 

testimony on order of register and receiver, 27. 
Oral Argument, 

before Commissioner, 37. 
before Secretary, 39. 
Oral Examination, 

Notice of Intention to j.ake Depositions on, 26, 56. 

Affidavit and Motion for Commission to Take Depositions on, 26, 57. 

Commission to Take Depositions on, 27, 58. 

Depositions on, 26. 

by stipulation, 26. 

on application, 26. 

service of papers, 26. 

objections to taking, 27. 

issuance of commission, 27. 

taking of depositions, 27. 

return of commission, 27, 58. 

costs, 27. 
Order, 

for publication of notice of contest, 14, 15, 51. 
for taking testimony, 

when made, 28. 



Papers, 

place of service of, 21. 
Parties, 

who may contest, 5. 
to be joined as contestees, 6. 
Personal Service, 

notice of contest, 11. 
form for, 49. 
parties to be served, 11. 
by whom, 11. 
how made, 11, 12. 
proof of, 12, 49. 



XIV i.J\i5L^& U±< LAJJN lii-Wla 



Power of Attorney, 

to represent party (form), 50. 
Practice, Rules of, 

Rule one, 5. 

Rule two, 6. 

Rule three, 8. 

Rule four, 9. 

Rule five, 10. 

Rule six, 11. 

Rule seven, 11. 

Rule eight, 12. 

Rule nine, 13. 

Rule ten, 15. 

Rule eleven, 16. 

Rule twelve, 17. 

Rule thirteen, 18. 

Rule fourteen, 20. 

Rule fifteen, 20. 

Rule sixteen, 21. 

Rule seventeen, 21. 

Rule eighteen, 23. 

Rule nineteen, 23. 

Rule twenty, 23. 

Rule twenty-one, 23. 

Rule twenty-two, 23. 

Rule twenty-three, 23. 

Rule twenty-four, 23. 

Rule twenty-five, 24. 

Rule twenty-six, 24. 

Rule twenty-seven, 26 

Rule twent-eight, 27. 

Rule twenty-nine, 28. 

Rule thirty, 28. 

Rule thirty-one, 28. 

Rule thirty-two, 28. 

Rule thirty-three, 28. 

Rule thirty-four, 28. 

Rule thirty-five, 29. 

Rule thirty-six, 29. 

Rule thirty-seven, 29 

Rule thirty-eight, 29. 

Rule thirty-nine, 29. 

Rule forty, 29. 

Rule forty-one, 29. 

Rule forty-two, 31. 

Rule forty-three, 31. 

Rule forty-four, 31. 

Rule forty-five, 31. 

Rule forty-six, 33. 

Rule forty-seven, 33. 

Rule forty-eight, 33. 

Rule forty-nine, 33. 

Rule fifty, 33. 

Rule fifty-one, 33. 

Rule fifty-two, 33. 

Rule fifty-three, 35. 

Rule fifty-four, 35. 



TABLE OF CONTENTS XV 



Rule fifty-five, 35. 

Rule fifty-six, 35. 

Rule fifty-seven, 35. 

Rule fifty-eight. 35. 

Rule fifty-nine, 35. 

Rule sixty, 35. 

Rule sixty-one, 35. 

Rule sixty-two, 35. 

Rule sixty-three, 36. 

Rule sixty-four, 36. 

Rule sixty-five, 36. 

Rule sixty-six, 37. 

Rule sixty-seven, 37. 

Rule sixty-eight, 37. 

Rule sixty-nine, 37. 

Rule seventy, 37. 

Rule seventy-one, 37. 

Rule seventy-two, 37. 

Rule seventy-three, 37. 

Rule seventy-four, 38. 

Rule seventy-five, 38. 

Rule seventy-six, 38. 

Rule seventy-seven, 38. 

Rule seventy-eight, 38. 

Rule seventy-nine, 38. 

Rule eighty, 38. 

Rule eighty-one, 38. 

Rule eighty-two, 39. 

Rule eighty-three, 40. 

Rule eighty-four, 42. 

Rule eighty-five, 42 

Rule eighty-six, 42. 

Rule eighty-seven, 42. 

Rule eighty-eight, 42. 

Rule eighty-nine, 42. 

Rule ninety, 42. 

Rule ninety-one, 42. 

Rule ninety-two, 42. 

Rule ninety-three (there is no Rule 93). 

Rule ninety-four, 43. 

Rule ninety-five, 43. 

Rule ninety-six, 43. 

Rule ninety-seven, 43. 
Preference Right, 

defined, 3. 

coal entry, 3. 

desert entry, 3. 

homestead, 3. 

mineral entry, 3. 

swamp land selections, 4. 

scrip locations, 4. 

timber entry, 4. 

not awarded on cancellation of filing of application, 4. 

notice of, 44. 
Proceedings, 

before registers and receivers, 5. 

before surveyors general, 37. 



lA±5Li. U±< L.UJN 1J±.JN lb 

before Commissioner, 37. 
before Secretary, 37. 

Proof, 

burden of, 29. 

submission of, pending contest, 33. 
Proof of Service, 

motion to set aside, 18. 

answer, 19, 53. 

contest, personal, 12, 49. 

contest, publication, 16. 52, 53. 

motion for new trial, 32, 33. 

notice of intention, interrogatories, and affidavit and motion for 

commission to take depositions on interrogatories, 25, 55. 
notice of intention and affidavit and motion for commission to 
take deposition on oral examination, 27, 57. 
Publication. 

notice of contest, 13-16. 

form for, 51. 

order for, 14, 15, 51. 
when allowed, 14. 

parties to be served, 14. 

preparation of notice, 14, 15. 

affidavit as basis for, 14, 51. 

posting in local office, 15, 16. 

publishing, 15, 16. 

mailing, 16. 

posting on land, 16. 

proof of publishing, 16, 52. 

proof of mailing, 16,' 52. 

proof of posting, 17, 53. 



Register and Receiver, 
proceedings, before, 5. 
jurisdiction of, 10. 
Regulations, 

governing adverse proceedings by government. 46. 
governing recognition of attorneys and agents, 42. 
Rehearing (see new trial) 

Commissioner's decision (abolished), 37. 
motion for of Secretary's decision, 39, 40, 41. 
grounds for, 41. 
service of, 41. 
reply, 41. 
Rejection. 

application to enter, 36. 
cause for, 36. 
appeal from, 36. 
application to contest, 10. 

appeal from, 10. 
notice of, 10, 50. 
Relevancy, 

of evidence, 30. 
Relinquishment, 

pending contest, 45. 



LrtDLJl Ul' LUIN llilN J.5) » XVII 

Reply. 

appeal to Commissioner, 34. 

appeal to Secretary, 38. 

motion for rehearing of Secretary's decision, 41. 

motion for new trial, 33. 
Response. 

appeal to Commissioner, 35. 

appeal to secretary, 38. 
Return, 

Commissions to Take Depositions on Interrogatories, 25, 56. 

Commission to Take Depositions on Oral Examnatin, 27, 58. 

Testimony Taken on Order of Register and Receiver, 28. 
Review. 

motion for of Secretary's decision (abolished), 42. 
Re-Review, 

motion for of Secretary's decision (abolished), 42. 
Rule to Show Cause, 

ex parte cases, 47. 

S. 

Scrip Location, 

preference right on cancellation of, 4. 
Secretary, 

proceedings before, 37. 
appeal to, 38. 
argument before, 39. 
decision of, 39. 

motion for rehearing of, 39, 40, -.1. 
supervisory power of, 42. 
Service of Notices, 35, 43. 

adverse proceedings by government, 47, 59. 
answer to contest, 19, 53. 
appeal to Commissioner, 34. 
reply, 34. 
response, 
appeal to Secretary, 38. 
reply, 38. 
response, 38. 
contest, 11. 

defective, 17. 
personal, 11, 12. 

parties to be served, 11. 
by whom, 11. 
how made, 11, 12. 
proof of, 12, 49. 
publication, 13. 
when, 14. 

parties to be served, 14. 
affidavit as basis for, 14, 51. 
order for, 14, 15, 51. 
publishing, 15, 16, 52. 
mailing, 16, 52. 
posting, 17, 53. 
Cross-Interrogatories, 25. 
Decision, 

register and receiver, 20, 31. 
Commissioner, 37. 



XVIII TABLE OF CONTENTS 



Secretary, 39. 
Hearing, 

contest, 21, 54. 

adverse proceedings by government, 47, 54. 
Intention, interrogatories, and affidavit and motion for commission 

to take depositions on interrogatories, 24, 25, 55. 
Intention, and affidavit and motion for commission to take depo- 
sition on oral examination, 26, 27, 57. 
Motion, to, 

set aside proof of service, 18, 19 
for new trial, 32, 33. 

reply, 33. 
rehearing of Secretary's decision, 41. 
reply, 
Rejection, 

of contest, 10, 50. 
application to enter, 36, 50. 
Subpoena, 

preparation and service of, 36, 59. 
Surveyors general, 

proceedings before, 37. 
Swamp Land Selection, 

preference right on cancellation of, 4 



Testimony, 

authority to take, 20, 54. 
depositions on interrogatories, 23. 

by stipulation, 24, 

on application, 24. 
depositions on oral examination, 26. 

by stipulation, 26. 

on application, 26. 
notice of taking, 20. 
noting of objections to, 30. 
Officers authorized to take, 

on interrogatories, 24, 25. 

on oral examination, 26, 27 t 

on order of register and receiver, 27. 
On order of Register and Receiver, 27. 

taking of, 28. 

return of, 28. 
transcript of, 30. 
Timber Land Entry, 

preference right on cancellation of, 4. 
Transferee, 
Trial, 

notice of, 20, 54. 
burden of proof, 29. 
evidence, rules of, 29. 
examination of witnesses 29. 
transcript of testimony, 30, 
demurrer on evidence, 30. 
decision, 31. 
New, 31. 

grounds for, 32. 



TABLE OF CONTENTS XIX 



motion foi\ 32. 

reply to, 33. 
showing required, 
service of motion, 32. 
allowance — denial, 33. 



Witnesses, 

examination of, 

exclusion of 29, 
Wife, 

intervention by deserted, 44. 
Writ of Certiorari. 39 



W. 



PREFACE 



The rules of practice now in force radically depart from those prev- 
iously in effect; more closely resembling rules o!f practice in civil courts. 
They are framed to expedite proceedings in public cases,. Simple 
as they are, their proper application is often replete with difficulty. 
Land Office practitioners are prone to follow the procedure obtaining in 
local' courts; not realizing that practice before land offices is sui generis. 
Such practice, though similar, is independent of state civil procedure. 
It is the purpose of this work to point out to attorneys and agents the 
method of preparation and conduct of contests. The Rules of Practice 
have been followed (with citation of cases) and their arrangement pre- 
served. Forms are provided for use at each stage of the proceedings. 

The index has been especially prepared for ready reference. 

O. C. GIBBS. 
Dickinson, North Dakota, 

November 30, 1911. 



PREFERENCE RIGHT. 

It seems out of place here to consider the meaning of the term "pref- 
erence right" and the cases in which it will be awarded, for it is granted 
only after the successful termination of the contest. Contestants, how- 
ever, are first of all desirous of knowing what is to be gained by a con- 
test, and do not care to go to the trouble and expense incident to such a 
proceeding unless some substantial advantage is to be secured by it. In 
short, they want to know whether they can secure a preference right. 

Preference Right Defined. A preference right is the right accruing to 
a successful contestant of certain classes of entries, to make entry for 
the tract involved within thirty days from notice to him of the cancella- 
tion of the entry under contest, to the exclusion of every one except the 
United States (L. D. Digest, vols. 1-30, p. 145, Title Preference Right; Ex 
Parte Cameron, 37 L. D., 450). 

The preferred right of a successful contestant to enter a tract of public 
land formerly embraced within the entry of another which was can- 
celed under his contest is secured by section two of the Act of May 14, 
1880 (21 Stat., 141), and by decisions and, regulations of the Department 
of the Interior. Section two of said act provides: 

"In all cases where airy person has contested, paid the land office fees, and 
procured the cancellation of any pre-emption, homestead, or timber-culture 
entry, he shall be notified by the register of the land office of the district in 
which such land is situated of such cancellation, and shall hfi allowed thirty 
days from date of such notice to enter said lands. * * * * 

Shortly after its passage the statute was construed by the depart- 
ment to include desert land entries, and later decisions indicate that 
other forms of entry come within its purview. 

In the case of Fraser v. Ringgold, 3 L. D., 69, the secretary said: 
"One who contests and procures the cancellation of a desert land entry 
has the preferred right to enter the tract under the Act of May 14, 1880, 
inasmuch as said law is remedial, and this class of entries, if not em- 
braced by the letter, are within the reason and purpose of the statute." 
This decision has since been uniformly followed (Jefferson v. Winter, 5 L. 
D., 694; Sears v. Almy, 6 L. D., 3; Harper v. O'Brien, 6 L. D., 572; U. S. 
v. Haggin, 12 L. D., 41), and preference right awarded successful con- 
testants of desert entries. 

The preference right of a contestant who secures the cancellation of a 
form of entry other than those specified in section two of the act of May 
14, 1880, including desert land entries, is not so well defined. In some 
cases it has been held that he may secure such a right; in others that it 
may properly be. allowed ; and in still others that he is entited to it. 

Coal Entries. In the case of Garner et al. v. Mulvane et al., 12 L. D. 
336, the secretary held that the right may be properly awarded to one 
who has made due application to contest, at his own expense, a coal entry, 
and furnishes information which leads to the cancellation of said entry 
on proceedings subseqently instituted by the Land Department. 

Mineral Entries. The secretary held in Dornen v. Vaughn, 16 L. D., 8, 
that the preferred right of entry awarded a successful contestant by the 
act of May 14, 1880, may properly extend to an agricultural claimant who 
successfully contests a mineral claim and clears the record thereof, and 
in Rinda, v. N. P. R. R. Co. et al, 19 D. D., 184, it was held that he 19 
entitled to such right. 



CONTEST PROCEDURE 



Swamp Land Selections. In Ringsdorf v. Iowa, 4 L. D., 497, it was 
held that though it is competent for the government on its own motion 
to inquire into the character of land claimed as swamp, the diligence or 
an applicant therefor, in bringing contest, and paying the expenses there- 
of, may result in securing to him the right of entry, on establishment of 
the non-swampy character of the land. 

Scrip Locations. In Hope v. Strong et al., 25 L. D. 92, it was held that 
a successful contestant against a scrip location is entitled to a preference 
right. 

Timber Land Entries. It was held in Olmstead v. Johnson, 17 L. D. 
151, that the successful contestant of a timber land entry made under the 
Act of June 3, 1878 (commonly known as the "Timber and Stone Law") is 
entitled to a preferred right under the Act of May 14, 1880. In this case 
the secretary referred to Garner et al. v. Mulvane et al.;Fraser v. Ring- 
gold, and Ringsdorf v. Iowa, saying: "It has been held that a successful 
contestant against a desert land entry was entitled to a preference riglit 
of entry under the Act of May 14, 1880. 'inasmuch as said law is remedial, 
and this class of entries, if not embraced by the letter, are within the 
reason and purpose of the statute.' This ruling has been uniformly fol- 
lowed, and as you have well held, 'the same reasons for giving the suc- 
cessful contestant of a coal entry, a desert land entry, and swamp land se- 
lection the preference right of entry will apply in the case of a timber 
land entry.' your judgment is accordingly hereby affirmed." It would 
seem that the reasoning in the cases cited would apply eaually well to 
any other form of entry,' but see Collins v. Hoyt, 31 L. D., 343, in which 
preference right was refused a contestant of an Indian allotment. 

It is well to note that the decisions cited refer to entries as distin- 
guished from filing or applications to enter. In this connection the word- 
ing o fthe statute should be carefully noted. The word entry which is 
used does not embrace fillings or applications to enter. A filing or applica- 
tion is not an entry and does not become one until it is allowed. A suc- 
cessful contest, or, properly speaking, protest, against an aplication to 
enter does not secure to the contestant a preferred right of entry 
(Jacoby v. Kubal et al., 29 L. D., 168; Todd v. Hays, 33 L. D., 655, adhered 
to on review, 34 L. D., 371; and Bowlby v. Hays, 34 L. D., 377). To entitle 
a contestant to a preference right he must have secured the cancellation 
of an entry. It becomes important therefore, to know What an entry 
is. In Hastings, etc., R. R. Co. v. Whiting, 132 TJ. S., 357, 363-4, an entry 
is defined to be that action of record whereby the United States by its 
proper officer recognizes that an individual right has attached to a tract 
of public land and that the United States is obligated to convey to him 
the legal title. 

The cases of Todd v. Hays and Bowlby v. Hays, ante, refer to appli- 
cations to purchase under the Act of June 3, 1878, and are to be dis- 
tinguished from Olmstead v. Johnson. An application to purchase is not 
an entry within the meaning of the term as defined. In Olmstead v. 
Johnson there was an entry intact of record. 

In brief, it may be said that in homstead and desert entries (Timber 
culture and pre-emption entries have been abolished, Sees. 1 and 4, Act 
March 3, 1891, 26 Stat., 1095), a successful contestant is entitled 'to a 
preference right. That in timber and stone, coal, and mineral entries, 
scrip locations, swamp selections, and other forms! of entry, the right 
should be awarded. That in any case, except where a settlement right l» 
concerned, the cancellation of an existing entry, and not a mere filing or 
application, must be secured! before the right will be granted. 



CONTEST PROCEDURE 



OF CONTESTS. 

Contest Defined. A contest is a proceeding before the land depart- 
ment to establish the invalidity of an entry, filing or claim to a tract of 
public land. The definition includes protests, so called. 

Contest proceedings are governed by acts of Congress and by decisions 
and regulations of the Department of the Interior. The practice is in no 
way affected by the civil procedure in state courts (Dewey v. Christie, 
4 L. D.. 346). 

The regulations which at present control the procedure in contests are 
the rules of practice approved December 9, 1910, effective February 1, 
1911. These rules radically depart from those previously in force; more 
closely resembling rules in court practice. They have the force and effect 
of law (Parker v. Castle, 4 L. D., 86; and cases cited; Rogers v. Lukens, 
6 L. D., Ill; Ex parte Lindback, 9 L,. D., 284; Hessong v. Burgan, 9 L. D., 
353; Ex parte Schreiner, 40 L. D.„ 90) and until changed or modified" 
(Stevens v. Robinson, 5 L. D., 112; Oliver v. Thomas et al.. 5 L. D., 292; 
Watts v. Forsyth, 5 L. D„ 624) must be regarded as controlling. 

RULES OF PRACTICE 
Proceedings Before Registers and Receivers. 

"RULE 1. Contests may be initiated by any person seeking to acquire title 
to, or claiming an interest in the land involved, against a party to any entry, 
filing, or other claim of priority of claim, or for any sufficient cause affecting 
the legality or validity of the claim, not shown by the records of the Land 
Department. 

Any protest or application to contest filed by any other person shall be 
forthwith referred to the Chief of Field Division, who will nromotlv investigate 
the same and recommend appropriate action." 

Initiation of Contests. Under tine old rule (Rule 1) any person, whether 
seeking to acquire title to the land or claiming an interest in it or not, 
might contest an entry, filing or claim for any cause effecting its legality 
or validity. This invited speculative and' colusive contests. Under its 
seeming sanction, anid protected to some extent by the former unwise 
policy cf the Department, which 'considered any iperson seeking to contest 
a claim on allegations or illegality or invalidity to be a friend of the gov- 
ernment, numerous speculators established themselves near local land 
offices and engageidl extensively in such litigation. The object of the 
new rule is to eliminate such persons. By restricting the iright to contest 
to persons claiming ami interest in the land, or to those seeking to acquire 
title to it, tlhe rule has to a considerable degree controlled, though not 
entirely stepped such practice. 

The rule limits the right to contest to those entries, filings or claims 
against which there is nothing of record to show illegality or invalidity. 
In other words, if the illegality or invalidity is patent of record, the 
entry, filing or claim is not subject to contest on that ground. Just when 
such fact is patent of record is not easily determined. It is certain that 
a prior or senior contest does not show it; nor does a special service pro- 
test. It is somewhat different, however, where adverse proceedings have 
been directed by the General Land Office. In such case, a contest filed 
after the proceeding is initiated is held in abeyance pending the ter- 
mination of the proceeding — following the general rule in private con- 
tests. Adverse proceedings are regarded as contests brought by the 
government. When ordered, unless otherwise directed by the Commis- 
sioner, they are held in abeyance to contests initiated prior to their insti- 
tution. It is believed that the rule has particular reference to filings 
and applications which have been rejected or suspended by the local offi- 
cers for insufficiency or irregularity and which have not been finally 
disposed of. 



CONTEST PROCEDURE 



The second paragraph of the rule provides for the disposition of con- 
tests and protests filed by persons not claiming an interest in the land, 
and who do not seek to acquire title to it. The contestant or protestant 
must disclose his interest and make specific reference to the law under 
which he desires to acquire title; showing his qualifications to do so 
(Rule 2, clause e) or his application will be regarded as coming under 
this paragraph and referred to the Chief of Field Division having juris- 
diction over the land involved for investigation. Applications to contest 
filed by persons under the first paragraph of the rule, who. after notice, 
fail to comply with all tne requirements of Rule 2, are considered as filed 
by parties without interest and are disposed of under the second para- 
graph of the rule (Hartung v. Gustafson, Dickinson 01553, Commissioner's 
decision.) 

APPLICATION TO CONTEST. 

"RULE 2. Any person desiring to institute contest must file, in duplicate, with 
the register and receiver, application in that behalf, together with statement 
under oath containing — 

(a) Name and residence of each party adversely interested. 

(b) Description and character of the land involved. 

(c) Reference, so far as known to the applicant, to any proceedings pend- 
ing for the acquisition of title to or the use of such lands. 

(d) Statement, in ordinary and concise language, of the facts constituting 
the grounds of contest. 

(e) Statement of the law under which applicant intends to acquire title and 
facts showing that he is qualified to do so. 

(f) That the proceeding is not collusive or speculative, but is instituted and 
will' be diligently pursued in good faith. 

g) Application that affiant be allowed to prove said allegation and that 
the entry, filing, or other claim be canceled. 

(h) Address to which papers shall be sent for service on such appli- 
cant." 

Clause (a) of the rule requires the name and residence of each parcy 
adversely interested to be given. That is, the name of the entryman 
and his present address if known. If unknown, his address of record 
should be given. This can always be ascertained from the serial reg- 
ister. This register should always be examined to see if the interest 
of a mortgagee or transferee has attached. If so, they must be 
joined as parties in interest, the name and address of each set forth, 
and thereafter notice of all proceedings served upon them (Lake Superior 
Etc. Co. v. Patterson, 30 L. D., 160; Romance Lode Mining Claim, 31 L. D., 
51; Ex Parte Babbitt, 35 L. D., 387). If the entryman be dead that fact 
must be alleged and the name, age, and residence of each known heir 
given. If an executor or administrator has been appointed, he must be 
joined as a party in interest together with all the heirs (Dixon v. Bell, 12 
L„ D.,* 510). It is not sufficient to name him alone, or to join one of the 
heirs with him (Denny v. Taylor's Heirs, 2 L. D., 227). Where the heirs 
are not known, every effort should be made to locate them in order that 
the rule may be complied with. If after diligent search and inquiry this 
requirement cannot be met, a general allegation that the heirs are un- 
known will be accepted as sufficient. Impossibilities are not required. 

Clause (b) requires the description of the land by legal subdivision of 
section, township and range to be given. The correct description must 
be given, or the application will be rejected. It can always be deter- 
mined from the records of the local office; and should be followed as 
there given to avoid confusion. The character of the land should be 
stated as agricultural, desert, mineral, coal, etc. 

Clause (c). Any proceeding looking to the acquisition of title to the 
land involved when brought to the attention of the local officers will be 
noted on the records. They should, therefore, be carefully examined and 



CONTEST TKOCEDURE 



brief reference made to anything disclosed by them. For instance: A 
prior contest, transfer or incumbrance, or application to make entry 
which has been suspended or rejected for conflict with the entry under 
attack and which has not been finally disposed of. 

Clause (d). The grounds of contest should be clearly, directly and 
affirmatively set forth. It would seem a very simple matter to state a 
sufficient, "contest cause," yet some attorneys, and most agents, make 
use of much unnecessary language and frequently end by stating nothing 
but conclusions of law with the result that their cases are rejected for in- 
sufficiency (Heartley v. Ruberson, 11 L. D„ 577). Facts should should be 
alleged which, if true, warrant the cancellation of the entry, filing or 
claim (Reed v. Arneson, 11 L. D., 325; Keye v. Lavine, 17 L. D., 177). A 
plain statement of facts in a direct and affirmative manner is all that is 
required (Silveria v. Paugh, 18 L. D., 2; Harper v. Eine, 26 L. D., 151). 
The charges in these two cases were not direct and were allowed only 
upon the ground that, taken as a whole, they disclosed a state of facts 
sufficient if true to warrant cancellation. They serve rather as examples 
of vague and indefinite allegations barely stating a sufficient cause of 
action. It is not necessary to allege that the contestee has not com- 
plied with the law. It is often worse than useless to do so, as it may 
result in rejection. It should be left wtih the local officers to determine 
from the facts stated whether the contestee has complied with law. 

The scope of the charges or grounds of contest should be sufficiently 
comprehensive to embrace every fact which it is expected to prove at 
the hearing, and be so worded as to present "clean-cut" issues. The 
contestant is held to the charges specifically laid in his application, 
and on failure to prove them cannot insist on judgment of cancellation 
for some default proved but not charged (Mayhok v. Ladehoff, 9 L. D., 
327; McCann v. Hatten, 11 L, D , 75; Tyndall v. Prudden, 13 L. D., 527; 
Herrington v. Campbell, 17 L. D., 129; Alexander v. Hamlin, 17 L. D., 
452), though the government may on its own motion cancel the entry on 
the testimony submitted. Amendment may be allowed on due notice and 
without prejudice to the adverse party (Seeds et al. v. Jones, 18 L. D„ 
583; L. D. Digest, Vols. 1-30, 519, Title Amendment), but this entails de- 
lay and additional expense. 

In order intelligently to frame charges against an entry, filing or claim, 
it is first of all necessary to know on just what grounds the particular 
class or kind of entry in question may be contested. To this end care- 
ful study of the laws and regulations relating to the different forms 
or kinds of entries should be made. It is obviously impossible here to 
consider them at length. 

In general, there are four distinct classes of charges which may be 
brought against an entry, filing or claim: 

First: Where the land involved is not subject to the form of entry, 
filing or claim in which it is embraced. For instance: Homestead entry 
of land mineral in charater is not allowed (Sec. 2302, R. S. U. S.; Dick- 
inson v. Capen, 14 L. D., 426; Gary v. Todd, 18 L. D., 58; Hayden v. 
Jamison, 26 L. D., 373); nor desert entry of land not desert in character 
(Sees. 2 and 3, Act of March 3, 1877, 19 Stat., 377; Par. 3, Regulations of 
Sept. 30, 1910, 39 D. D„ 253); nor timber and stone entries of lands 
chiefly valuable for agriculture or minerals (Regulations of Nov. 30, 
1908, 37 L. D., 289, et seq. and Acts cited, 298). 

Second. Where, for any reason, the person (or persons) whose entry, 
filing or claim is under attack was disqualified to make the entry, filing 
or claim in question. 



CONTEST PROCEDURE 



Third. Where the land involved is subject to the prior right of an- 
other; in which case the party claiming priority alone may contest. 
This class refers to protests, so called. 

Fourth. Where, after entry, the requirements of laws and regulations 
governing same have not been complied with. 

Clause (e). Here state the law under which title is sought to be ac- 
quired as "homestead law," "desert land law," etc. The facts showing 
qualification which are set forth in the approved form of application to 
contest (Appendix A, note "e") will usually be sufficient. Certainly so 
where the contestant intends to make entry under the homestead, 
desert or timber and stone laws. In other cases some slight variation is 
necessary. For instance: Where title is sought to be acquired by a 
scrip location or coal entry. 

Clauses (f) and (g). The wording of the approved form (Appendix 
A, notes "f" and "g") should be followed. 

Clause (h). Care should be taken to state the address correctly. All 
papers which are to be served by or upon the contestant will be sent to 
the address given. Failure in this requirement may result in abatement 
of the case (Rule 8). Where an attorney or agent is employed to prose- 
cute the case, his name and address should also be given. All papers, 
except notice of cancellation will be served upon him. 

The application must be filed in duplicate; that is, one original and one 
copy, each ofwhic h must be sworn and subscribed to by the contestant 
or protestant and his corroborating witnesses (Instructions, March 3, 
1911). It may be executed before any officer authorized to administer 
oaths and its execution without the district in which the land is in- 
volved is located does not affect its sufficiency (Benschotter v. Williams, 
3 L D 420), though if executed before an officer who has no seal, his 
official character must be certified to by proper authority over signature 
and seal. 

When drawing the application (Appendix A), three copies should be 
made Two must be filed in the local office having jurisdiction over the 
land involved; the third should be retained by the contestant, his attorney 
or agent, from which to make copies for service upon the contestee (Allen 
v. Leet, 6 L. D., 669). At the time the application is drawn, three copies of 
notice for personal service upon the contestee (Appendix B) should be 
prepared for the signature of the local officers and submitted with the 
application (Rule 62). 

If an attorney or agent is to prosecute the case an authorization (Ap- 
pendix C) or power of attorney (Appendix D) should be secured from the 
contestant and filed with the application and notices. The attorney or 
agent should endorse his acceptance of the power or 'authority thereon; 
giving his name and address. This is necessary to comply with Depart- 
mental regulations governing recognition of attorneys and agents (p. 
87, et seq.). These are all the papers necessary to be filed to initiate a 
contest. Care should be taken to fill out all blanks as indicated in the 
appendices; this is necessary with the application in order to comply 
with all the requirements of the several clauses of the rule; and with the 
notices, to comply with Rules 5 and 62. Failure, after notice, to comply 
with all the requirements of the rule will result in the application being 
considered as a protest by a party without interest and cause it to be re- 
ferred to the Chief of Field Division having jurisdiction under paragraph 
two of Rule 1 (Hartung v. Gustafson, Dickinson 01553, Commissioner's 
decision). 

"RULE 3. The statements in the aplication must be corroborated by the 
affidavit of at least one witness." 



CONTEST PROCEDURE 9 



The application must be corroborated as required by the rule (Winans 
v. Mills et al.. 4 L. D., 255). Where the corroborating affidavit is omitted, 
it may be supplied by amendment. (Hunter v. Kimball et al., 2 L. D., 
39). but where the defect is not cured within the time allowed and an- 
other contest is initiated, the second contestant in point of time secures 
the right to proceed against the entry involved to the exclusion of the 
first (Farmer v. Moreland et al., 8 L. D., 446; Shugren et al v. Dillman, 
19 L. D., 453). 

When the charges of contest are based upon the information and belief 
of the contestant, the corroborating affidavit must be made by some one 
having actual knowledge of the facts alleged (Buckley v. Massey, 16 L. D., 
391) ; when based upon actual knowledge of the contestant, the corrobo- 
rating affidavit may be made upon information and belief (Parker et al v. 
Lynch. 20 L. D , 13.) These decisions are based upon the rules of prac- 
tice formerly in effect. It is believed that the requirements should be 
more strict under the present rules. 

Under the old rules a decision recommending cancellation was never 
rendered by the local officers until after a hearing at which the testimony 
of at least two, and often three, witnesses had been submitted in sup- 
port of the contest allegations. This was the practice even in default 
cases; that is, where the contestee was in default. Under this practice 
an entry was never cancelled except upon the testimony of two persons 
having actual knowledge of the facts. Under the present rules, should 
the decisions cited be adhered to, it would be possible to secure the can- 
cellation of an entry upon facts within the actual knowledge of only one 
person and that person an interested party, i. e.. the contestant or his 
corroborating witness. The contestant is very much interested ttnd his 
witness, ordinarily a friend, is usually anxious to see him secure the land. 
Even in default cases it seems unjust to cancel an entry upon the ex 
parte statement of a single interested person. 

Under the old rule (Rule 3) which required one or more corroborating 
witnesses, local officers might have adopted a local rule requiring two 
corroborating witnesses (Ex parte Whitehead, 38 L. D. 144) and il is be- 
lieved they have authority to adopt a similar one under the new rules. 
For instance: Requiring applications to contest, when made upon infor- 
mation and belief of the contestant, to be corroborated by two witnesses 
having actual knowledge of the facts; and when made upon actual knowl- 
edge of tne contestant to be corroborated by one witness having actual 
knowledge of the facts. 

The corroborating affidavit may be executed before any officer author- 
ized to administer oaths, and may be executed outside of the land dis- 
trict having jurisdiction (Benschotter v. Williams, 3 L. D., 420). 

"RULE 4. The register and receiver may allow any application to contest 
without reference thereof to the Commissioner; but they must immediately 
forward copy thereof to the Commissioner of the General Uand Office, who 
Avill promptly cause proper notations to be made upon the records, and no 
patent or other evidence of title shall issue until and unless the case is closed in 
favor of the contestee." 

Prior to February 1, 1911, registers and receivers were without au- 
thority to order a hearing on an application to contest any entry or loca- 
tion on which final certificates had issued (Rule 5, old rules practice). In 
contests of homestead and desert entries, where final certificate had not 
issued, and in cases involving priority of right to make entry, hearings 
were ordered by the local officers. Other cases were referred to the 
Commissioner for action. Under this practice much work was cast 
upon the general office which could more easily and expeditiously have 
been disposed of by the local officers. 



10 CONTEST PROCEDURE 



The new rule remedied this by conferring jurisdiction upon registers 
and receivers to order hearing upon any sufficient application. Now 
they may order hearing on contest of any entry, filing or claim at any 
time prior to the issuance of patent (Par. 6, Instructions, March 3, 1911). 
When patent has issued the department is without jurisdiction (L D. 
Digest, Vols. 1-30, p. 498, Title Patent). 

On the day the contest is allowed, a copy of the application is trans- 
mitted to the General Land Office. This is designed to prevent col- 
lusive contests, i. e., contests brought to cover an entry and protect it 
from cancellation under a bona fide contest for a time. Under this prac- 
tice such contests serve only to advise the department of the default 
of the entryman in compliance with the requirements of law, with the 
result that sooner or later the entry is investigated by an agent of the 
Filed Service. When the result of this provision of the rule is gener- 
ally known its purpose will have been accomplished. 

CONTEST NOTICE. 

"RULE 5. The register and receiver shall act promptly upon all applica- 
tions to contest and, upon the allowance of any such application, shall issue no- 
tice; directed to the persons adversely interested, containing: — 

(a) The names of the parties, description of land involved, and identifica- 
tion, by appropriate reference, of the proceeding against which the contest is 
directed. 

(b) Notice that unless the adverse party appears and answers the allega- 
tions of said contest within 30 days after service of notice the allegations of the 
contest will be taken as confessed. 

For contents of notice when publication is ordered, see Rule 9)." 

Clause (a). The name and address of each party adversely interested 
(Clause A. Rule 2) and that of the contestant must be given. The ad- 
dress of the contestant should be as given in the application (Appendix A, 
note "h"). The description of the land should be as stated in the applica- 
tion (Clause B, Rule 2) and the number and date of the entry, filing or 
claim given (Appendix B, note "a"). Where the entry has a number 
under the old series, that and the new serial number should be given. 

Clause (b). The exact wording of the approved form of contest notice 
(Appendix B, note "b") should be followed. 

If the application be allowed the notices which have been prepared and 
filed with the application will be signed by the register, the receiver, or 
both (Hahn v. Spencer, 2 L. D. 228; Lundquist v. Fenton, 11 L. D. 270; 
Durkin v. Lindstrand, 11 L. D., 421) and transmitted to the contestant his 
attorney or agent by ordinary mail addressed to the place designated in 
the application as address for service (Clause H. Rule 2). Ml contest 
notices must be served by the contestant, his attorney or agent (Nichols 
et al. v. Parks, 22 L. D., 379, 380; Countryman v. Herbert, 26 L D 287: 
Rule 62). 

If the application be rejected, notice thereof (Appendix E) will be 
served by the local office upon the contestant, his attorney or agent per- 
sonally or by registered mail directed to the place designated in the ap- 
plication as address for service. Notice of rejection must be signed by 
both the register and receiver (Anderson v. Morrison, 12 L D 642' 
Lamb v. Adams, 23 L. D.. 551) as such action is a decision on the merits 
or. the case and final if no appeal is taken (Drummond v. Reeve, 11 L. D.. 

An appeal from the action of the local officers in rejecting an applica- 
tion to contest must be filed within thirty days after service of notice 
When an appeal is taken it is not necessary that any papers be 
served upon the contestee; as yet he has not been made a party to the 
proceeding. If no appeal be taken within the time allowed the register 



CONTEST PROCEDURE ]_]_ 



and receiver will close the case and transmit the papers relating thereto 
to the General Land Office with their monthly returns. Rejections of 
applications to contest will not be reviewed by the Commissioner unless 
an appeal is taken from the action of the local officers. 

SERVICE OF NOTICE. 

••RULE 6. Notice of contest may be served on the adverse party personally 
or by publication." 

For manner of serving notice personally, see rule 7; by publication see 
rules 9, 10, and 11. 

Notice, whether personal or by publication, must be served in ac- 
cordance with Departmental Rules of Practice and not under the civil 
procedure of the state (Dewey v. Christie, 4 L. D., 346; Ackerson v. Dean, 
10 L. D. 477; Crockford v. Mallory, 39 L. D. 60) The requirements of 
the rule must be complied with in every particular, or jurisdiction is not 
obtained (Watson v. Morgan et al., 9 L. D., 75; Crockford v. Mallory, 
ante"). It is the due service of notice and not the filing of the application 
to contest which vests jurisdiction in the local officers (Houston v Coyle, 
2 L. D., 58; Vincent v. Gibbs, 24 L. D., 383; Bridges v. Bridges, 27 L. D.', 
654). 

"RULE 7. Personal service of notice of contest may be made by any per- 
son over the age of 18 years, or by registered mail; when served by regisitered 
mail, proof thereof must be accompanied by postoffice registry return re- 
ceipt, showing personal delivery to the party to whom the same is directed; 
when service is made personally, proof thereof shall be by written acknowl- 
edgment of the oerson served, or by affidavit of the person serving the same, 
showing personal delivery to the party served; except when service is made 
by publication, a copy of the affidavit of contest must be served with such 
notice." 

Each party adversely interested must be served with notice, that is, 
the entrymen. all transferees and encumbrances of record (Lake Su- 
perior, Etc., Co. v. Patterson, 30 L. D., 160; Romance Lode Mining 
Claim, 31 L. D., 51; Ex Parte Babbitt, 35 L. D., 387), and, ifthe entryman 
be dead all heirs and the administrator or executor if one has been ap- 
pointed (Denny v. Taylor's Heirs 2 L. D., 227; Dixon v. Bell, 12 L. D., 
510). 

Personal service of notice must be made whenever possible (Bronson 
v Sawyer, 1 L. D.. 107; U. S. v. Richardson. 5 L. D., 253; Sheets v. 
Slaughter, 32 L. D., 38; foot note Appendix P), and it makes no dif- 
ference that service be made outside of the land district wherein the land 
in controversy lies (Vincent vs. Gibbs, 24 L. D. 383), or outside of the 
state in which such district is located (Noel v. Howland, 28 L. D , 340, 
341). 

Service may be made by any person over eighteen years of age, 
whether a party in interest or not (Baker v. Sutherland, 6 L. D., 552), 
but cannot be made on Sunday or a legal holiday (Crockford v. Mallory, 39 
L. D., 60). It must be made by personal delivery to and leaving with 
the contestee, and no other person (Soderquist v. Mallon, 14 L D 162' 
Richards v. Roberts, 21 L D. 335; Crockford v. Mallory, ante) a copy o'f 
the contest notice and also a copy of the contest application. Copies 
only are required to be served. It is immaterial whether they be written, 
printed, or partly written and partly printed (Allen v. Leet, 6 L. D., 669)' 
but they must be exact copies. The foregoing has particular application 
to cases where service is made by "personal delivery" to the contestee as 
distinguished from service by registered maul. When service is made by 
registered mail the letter which contains the notice and application 
must be receipted for by the contestee. If receipted for by any 



12 CONTEST PROCEDURE 



other person, service is not obtained and the contestant is in 
the same position as though he had never attempted service. 
However, if the contestee refuses to accept the letter, service will not be 
defeated (Kelly v. McWilliams, 12 L. D., 403). When such service is at- 
tempted, the words "Receipt Demanded," and "Deliver to Addressee Only; 
Do Not Deliver To His Agent," should be endorsed upon the envelope. 
If you fail to demand a receipt, registry return card showing reception of 
the letter by the contestee will not be returned to you; and if you fail 
to make the other endorsement it is probable that the letter will be de- 
livered to, and receipted for, by some other person than the contestee, 
in which event you fail to obtain service. 

Proof of service must be the written acknowledgment of the person 
served, or by affidavit of the person making service. However, see Han- 
sen v. Ueland, 10 L. F. 274, in whch it was held that where service is 
not denied, and was in fact duly and legally made, the manner of proof 
thereof is immaterial (See also Fonson v. Baker, 21 L. D., 383; College 
v. Sutherland. 34 L. D.. 534). Notwithstanding these cases it is decidedly 
the better practice to make proof as required by the rule 

Where service is acknowledged, a written statement, giving time and 
place, showing reception of a copy of the notice and application must be 
signed by the contestee. Where service is by "personal delivery" as dis- 
tinguished from service by mail, the person who made service must make 
affidavit showing personal delivery of a copy of the contest notice and ap- 
plication to the contestee, naming the time and place of such service. 
When service is by registered mail, the date the letter was receipted for is 
the day of service. Where the date of delivery is not shown (the per- 
son receipting for the letter may fail to fill in the blank) the day of 
service is the date the registry return card was transmitted on its re- 
turn. This will be shown by the post-mark of the returning office. 
Proof of service by registered mail must be by the affidavit of the per- 
son who posted tne letter, showing that the letter contained copies oH 
the notice and application. The affidavit must be accompanied by the 
registry return receipt showing reception of the letter by the contestee. 
For form of service in such cases see Appendix B. This form, with va- 
riation, is used in proof of "personal delivery" and acknowledgment of 
service. 

"RULE 8. Unless notice of contest is personally served and proof thereof 
made within thirty days after issuance of such notice, or, if service by pub- 
lication is ordered, unl'ess such publication is commenced within 10 days 
after such order is made and proof of publication is filed in the local office 
within 10 days after the last publication, as specified in Rule 10, the contest 
shall abate." 

in computing the time allowed for service under this rule, the day the 
notice is issued, i. e.. the day il is dated, is excluded and the last day in- 
cluded, (Hart v. Hector, 21 L. D., 164; Needs v. Hinze, 22 L. D., 640) except 
where such day fa.ls on Sunday or a legal holiday, in which, ca e the 
ame is extended to the next succeeding business day (Rule 94). For 
ms-.ance: Notice for personal service is issued May 16th; proof of service 
must be filed not later than 4:30 p. m. on June loth, unless that day falls 
on Sunday or a legal holiday, in which case it must be filed the next day 
on which the local office is open for business. Sundays and holidays, ex- 
cept the last day, are not excluded in computing time, as in court prac- 
tice. This should be remembered. 

If due diligence be exercised thirty days is ample within which to 
secure personal service and file proof thereof, or to secure the information 
necessary to be furnished when applying for an order to serve notice oy 
publication (Rule 9). Where service :s made by publication, the time 



CONTEST PROCEDURE 13 



allowed within which it must be begun, completed, and proof thereof 
tiled is sufficient for an ordinarily diligent practitioner. 

For two or three months after these rules became effective many 
cases abated under this rule. This, however, was not due to insufficient 
time within which to obtain service, but rather to the dilatory practice 
which had grown up under the former rules which attorneys were loath to 
abandon, and failure on their part to appreciate the necessity for prompt 
action and diligent effort required by the rules now in force. 

The rule is mandatory and will be enforced strictly. On failure to file 
proof of personal service within time allowed, or to furnish the in- 
formation required by rule 9, apply for an order to serve notice by pub- 
lication, and, if granted, proceed strictly in accordance with the rules 
relating to service by publication the case will abate and be closed 
without notice (Instructions March 3, 1911). When a case has abated 
the local officers are without jurisdiction to reinstate it or to take any 
other action (Id.). 

Under the former rules when a case was voluntarily dismissed by the 
contestant (DeLaney v. Bowers. 1 L. D., 161) or dismissed by the local 
officers and the surrounding circumstances showed want of good faith or 
due diligence (Quirk v. Stratton, 5 L. D., 210; Gauterau v. Chaney, 26 L. 
D., 450) a second contest by the same party upon substantially the 
same grounds was not allowed. However, where a case was dismissed 
upon jurisdictional grounds for want of proper service of notice upon 
the contested, such dismissal did not bar a second action by the same 
contestant upon the grounds laid in his first contest (Titus v. Collier, 20 
L. D., 271). 

In vew of this it would seem that in the absence of an intervenng 
adverse interest, and under circumstances showing good faith and rea 
sonable diligence, the local officers would have authority (Rule 4) to 
allow a second contest. For instance: Where notice was served, but 
proof thereof was not filed within the time allowed because of some cir- 
cumstance beyond the control o'f the contestant. The allowance of 
such an application rests in the sound discration of the local officers 
(Bridges v. Bridges, 27 L. D., 654, and cases cited). 

When applying to proceed anew, the application should be prepared as 
an original one (Rule 2). It should be accompanied by supplemental 
affidavit setting forth the proceedings' had under the first contest, the 
efforts made to secure service, and fully explaining failure to file proof 
in time. The local officers will not allow a second application unless it 
be clearly shown that a denial of it would work hardship upon a con- 
testant whose good faith is apparent. 

SERVING NOTICE BY PUBLICATION. 

"RULE 9. Notice of contest may be given by publication only when it ap- 
pears, by affidavit by or on behalf of the contestant, filed within 30 days after 
the allowance of application to contest and within 10 days after its execution, 
that the adverse party cannot be found, after due diligence and inquiry made 
for the purpose of obtaining service of notice of contest within 15 days prior 
to the presentation of such affidavit, of the postmaster at the place of ad- 
dress of such adverse party appearing on the records of the Land Office, and 
of the postmaster nearest the land in controversy and also named persons re- 
siding in the vicinity of the land. 

Such affidavit must sate the last address of the adverse party as ascertained 
by the person executing the same. 

The published notice of contest must give the names of the parties thereto, 
description of the land involved, identification, by appropriate reference, of 
the proceedings against which the contest is directed, the substance of the 
charges contained in the affidavit of contest, and a statement that, upon fail- 
ure u answer within 20 days after the completion of publication or sucn no- 
tice, the allegations of said affidavit of contest will be taken as confessed 

The affidavit of contest need not be published. 

There shall be published with the notice a statement of the dates of pub- 
lication." 



14 CONTEST PROCEDURE 



Notice must be served upon each party adversely interested (Rule 7. 
p. 11). Service by publication is allowed only in those cases where after 
due diligence, it is shown that personal service cannot be obtained 
(Musser v. Parker. 13 L. D.. 240; Xewiew v. Rock et al.. 20 L. D., 383; 
Walkenshaw v. Burns. 35 L. D.. 462; and cases cited under Rule 7. p. 
The shewing of due diligence to obtain personal service required 
to be made before service by publication will be ordered must be by 
affidavit (Parker v. Castle 4 L. D.. S4; Miller v. Knutsen. 4 L. D., 537; 
Xeel v. Herrick. 9 L. D. 168; Nanny v. Weasa, 9 L. D. 226. 606: Rob v. 
Riley, 17 L. D. 159' and publication without such affidavit does not confer 
sdiction (Allen v. Leet. 6 L. D. 669: Lundy v. Hoebell. 7 L. D. 49: B ne 
v. Dickerson's Heirs. S L. D.. 452; Ludwig v. Faulkner et al.. 11 L. D., 
315 i. The affidavit may be made by any person possessing tbe requisite 
knowledge (Bradford v. Aleshire. 15 L. D.. 240; Wagers v. Nelson. 22 L. 
D.. 566; Smith v. Murphy. 25 L. D.. 74). It is not essential that it be made 
by the contestant, but it must be made by the person who made the in- 
quiries required by the rule, and not by some other person on the in- 
formaton furnished by him. If the affidavit be so made, jurisdiction is 
not obtained (Walkenshaw v. Burns. 35 L D., 462). 

When the application to contest is allowed and notce for personal 
service issued service should be made upon the contestee at the earliest 
possible moment and proof thereof filed in the local office. If personal 
service cannot be secured, immediate inquiry should be made of the 
postmaster nearest the land; of persons ("who must be named in the 
affidavit) residing in the vicinity of the land; and of the postmaster at 
the record address of the contestee i shown by the records of the local- 
office) as to his whereabouts, and. if possible, his address must be ascer- 
tained. If found, it will be necessary io serve notice upon him personally 
regardless of the fact that he is out of the state (Rule 7. p. 11). If his 
present address cannot be determined, his last known address must be 
ascertained. These inquiries must be made in order to obtain the in- 
formation necessary to make the affidavit, required when applying for an 
order to serve notice by publication. 

If the contestee cannot be located, affidavit (Appendix P) showing the 
diligent search and inquiry required by the rule should be filed and ap- 
plication made to serve notice by publication. The affidavit may he 
sworn to before any officer authorized to administer oaths (Rule 2, p. 
8 . It must be made within 15 days after the search and isquiry (In- 
structions. 33 L. D.. 578) and filed within 10 days after its execution, 
and before the thirty days allowed for personal service have expired, or 
the case will have abated (Rule 8). 

When preparing the affidavit four copies of notice of publication (Ap- 
pendix G) should be prepared and filed with it (Rule 62). The wording 
of the form as to the names and addresses of the parties, description of 
the land, and identification of the proceeding against which the con- 
test is brought is identical with the notice for personal service (Appendix 
B). The substance of the charge as laid in the application (Clause "d," 
Rule 2 i must be published. Ordinarily the entire charge may be inserted 
in the notice. The wording of the form as to the time allowed for filing 
of answer, manner of serving same. and address of the contestee for ser- 
vice must be followed. There must be published with the notice a 
statement of the dates on which it is to be published. This is neces- 
sary to enable the contestee to determine when his answer must be 
filed, as he is allowed twenty days after the fourth publication. 

If the application for publication be allowed, tne order at the bottom 
of the affidavit (Appendix Fi will usually be signed by either or both 
the register and receiver. However, it is immaterial whether such or- 



CONTEST PROCEDURE ] 5 



der be formal and in writing or merely verbal (Oison v. Eagan, 21 L. D. 
221 : Smith v. Murphy, 25 L. D.. 74), though it is essential that publication 
be ordered by either or both of the local officers or jurisdiction is not ob- 
tained (Rob v. Riley. 17 L. D., 159). When ordering publication, one or 
both of the local officers (Halm v. Spencer, 2 L. D , 228; Lundquist v. 
Fenton, 11 L. D. 270; Durkin v. Lindstrand, 11 L. D. 421) will sign the 
notices (Appendix G) and return them to the contestant, his attorney 
or agent for service. 

The blanks for the dates of publication at the bottom of the notice 
should not be filled out until after issued and returned for service. This 
is certainly the better practice. Should the local officers designate the 
dates for publication when issuing the notices much inconvenience would 
result to contestants and the abatement of cases frequently caused 
through inability on their part to secure publication on the dates specified. 
Service of notice rests with the contestant and he should be allowed to 
suit his own convenience. Rule 8 effectively prevents dilatoriness. 

Immedtely after the first publication, a copy of the notice as pub- 
lished must be forwarded to the register for posting in the local office 
(Rule 10). However, it is the practice of some local offices when issuing 
notices immediately to post a copy reta'ned for that purpose. Where this 
practice obtains it will not be necessary for the contestant to furnish a 
printed copy. 

"RULE 10. Service of notice by publication shall be made by published no- 
tice, at least once a week for four successive weeks, in some newspaper pub- 
lished in the county wherein the land in contest lies, or in the newspaper pub- 
lished nearest such land." 

The foregoing paragraph of the rule w r as amended March 7, 1911, to 
resd as follows (39 L. D., 552). 

"Service of notice by publication shall be made by publishing notice at least 
once a week for four successive weeks in some newspaper published in the 
county wherein the land in contest lies; and if no newspaper be printedin such 
county, then in a newspaper printed in the county nearest to such land." 

"Continued. Copy of the notice as published, together with copy of the affi- 
davit of contest, shall be sent by the contestant, within 10 days after the first 
publication of such notice, by registered mail, directed to the party for service 
upon whom such publication is being made, at the last address of such party as 
shown by the* records of the Land Office, and also at the address named in 
the affidavit for publication, and also at the postoffice nearest the land. 

Copy of the notice, as published, shall be posted in the office of the register 
and also in a conspicuous place upon the land involved, such posting to be 
made within 10 days after the first publication of notice as hereinabove pro- 
vided." 

The rule is so clear that any explanation would seem superfluous. Oc- 
casionally, however, some difficulty is met with by inexperienced practi- 
tioners. 

As soon as the notices for publication are returned, the blanks show- 
ing dates of publication at the bottom of the form should be filled out 
and one copy forwarded to the newspaper in which publication is to be 
made. Publication must be made in the county wherein the land in con- 
test lies if a newspaper be printed in that county, and the notice must be 
published in the paper nearest to the land (Tiensvold v. Bell. 19 L. D., 
123). Where no paper is published in the county in which the land lies' 
publication must be made in a paper published in the county which lies 
nearest to te land, and which is published nearest to the land (Id.). Usu- 
ally no difficulty will be experienced in determining the proper paper 
for publication. 

The first publication must be within 10 days after notice is issued, the 
day of date being excluded (Ryckman v. Lasell, 10 L. D., 620; Rule 94). It 



16 CONTEST PROCEDURE 

must be published once a week for four consecutive weeks (Erickson v. 
Anderson, 3 L. D., 529; Ex Parte Waterhous, 9 L. D., 131; Rule 13). 

Within ten days after the first publication a copy of the contest appli- 
cation and a copy of the notice as published, (Allen v. Leet, 6 L. D., 669) 
must be sent by registered mail (Bugby v. Cosby, 11 L. D., 433; Hilton 
v. Koepcke, 19 L. D.. 220), to the contestee at his record address (Popp 
v. Doty. 24 L. D., 350), which will be shown by the records of the local 
office; at the postoffice nearest the land involved (Orstad v. Timlies 
Heirs, 30 L. D. 304) and to his last known address (Quam v. Brown, 10 
L. D., 666) as shown by the affidavit filed as a basis for publication (Ap- 
pendix F) provided such address is different from the record address ancP 
the postoffice nearest the land. Where the record address, the postoffice 
nearest the land, and the last known address are identical it is only 
necessary to send one letter. 

A copy of the notice as published must, within ten days after the first 
publication (Rules 8 and 94) be posted in a conspicuous place upon the 
land involved (U. S. v. Scott Rhea, 8 L. D., 578; Ex Parte Waterhouse, 
9 L. D., 131) ; and a^so in the local office having jurisdiction (Baldwin v. 
Randall, 6 L. D., 408; Van Brunt v. Hammon et al., 9 L. D., 561). Posting 
in the local office will be attended by the register. In some local offices 
this is done immediately notice is issued. Others require the contestant 
to furnish a printed copy for that purpose within 10 days after the first 
publication. 

It should be remembered that strict compliance with the rule in every 
particular is essential to confer jurisdiction (Miller v. Knutsen. 4 L. D., 
537; Nevview v. Rock et al., 20 L. D. 383; Walkens'haw v. Burns, 35 
L. D., 462) and to prevent abatement (Rule 8). 

"RULE 11. Proof of publication of notice shall be by copy of the notice as 
published, attached to and made a part of the affidavit of the publisher, or fore- 
man, of the newspaper publishing the same, showing the publication thereof in 
accordance with these rules. 

Proof of posting shall be by affidavit of the person who posted notice on 
the land, and the certificate of the register as to posting in the local land office." 

Proof of service by publication must be filed within ten days (Rule 94) 
after the notice is last published, or the case will abate (Rule 8). Such 
proof consists of affidavits showing due publication of notice, mailing and 
posting, as required by Rule 10. 

Proof of publcation of notice must be by affidavit (Appendix H) made 
by the publisher or foreman of the paper in which publication was made, 
attached to whch must be a copy of the notice as published. The affidav't 
should show that the paper is a "legal" one, i. e., one in which legal no- 
tices may be published, and show the dates on which publication was 
made. 

Proof of mailing must be by affidavit (Appendix I) of the person who 
mailed the letters (Hilton v. Koepcke, 19 L. D., 220), showing that within 
ten days (Rule 94) after the notice was first published, copies of the con- 
test notice, as published, and application to contest were sent by regis- 
tered mail to the contestee at his record address; the postoffice nearest 
the land; and to his last known address as shown by the affidavit filed as 
a basis for service of notice by publication (Appendix F). As proof 
that the letters were sent by registered mail, the receipts issued bv the 
postmaster when receiving them for registraton must be attached to the 
affidavit (Hilton v. Koepcke, ante). The affidavit is required to show the 
contents of the letters mailed (Hatter v. Carmack's Her's, 17 L. D. 532) 
Some practitioners seem to think it necessary to show that the letters 
rr.ailed were received by the contestee. In this they are in error. When 
mailed as required and proof thereof made, it is immaterial whether any 
of them are ever receved by the contestee. 



CONTEST PROCEDURE 17 



The rule does not specifically provide for the manner in which proof of 
mailing shall be made, but under Rule 10 it would seem clear that such 
proof must be by affidavit. This is the practic and all local offices require 
proof to be so made. 

Proof of posting of notice upon the land must be by affidavit (Appendix 
J) of the person who posted it. The affidavit should show that the notice 
was securely posted in a conspicuous place, and if unmolested would re- 
main posted for twenty days after the last publication as specified therein. 

Posting of notice in the local office will be certified to by the register. 

DEFECTIVE SERVICE OF NOTICE. 

•RULE 12. Xo contest proceeding shall abate because of any defect in the 
manner of service of notice in any case where copy of the notice or affidavit 
of contest is shown to have been received by the person to t->a served; but, in 
such case, the time to answer may be extended in the disruption of the reg- 
ister and receiver." 

This rule must be construed in connection with Rules 7, 8, 9 10. 11 and 
*13. and particularly with reference to Rule 8. Rules 7, 10 and 13 clearly 
indicate that copies of the contest notice and application shall be served 
upon the contestee, whether service be personal or by publication, and 
specify the manner of service and mode of proof thereof. The purpose of 
Ru.e 8 is to prevent dilatory practice and inspire the contestant with a 
proper appreciation of the necessity of diligence and promptness in se- 
curing service and filing proof thereof by limiting the time within which 
he may do this. 

What then, is the effect of Rule 12 and to what extent does it modify 
Rule 8? Does it extend the time allowed for filing proof of service and 
save from abatement cases in which a copy of the contest notice, or ap- 
plication, was received by the contestee, though proof of that fact was not 
filed until after the expiration of the time allowed? Or does it only save 
from abatement cases in which a copy of the notice or application has 
been served upon tie contestee and proof of that fact is filed before the 
expiration of the time allowed under Rule 8? 

In order properly to construe the rule, some knowledge of the dispo- 
sition made of cases which have abated is necessary. When proof of 
service is not filed, on the day next -following the last day on which this 
may be done, the case is marked "abated" and closed on the docket. Im- 
mediately upon abatement the contest application is transmitted to the 
Chief of Field Division having jurisdiction over the land involved, and 
the register and receiver are without jurisdiction to reinstate the case or 
to take any other action in the matter (Instructions, March 3, 1911). 
When the case is closed, if there be a "junior" contest, i. e., one filed 
against the same entry subsequent in time to the first and held in abey- 
ance, it is advanced on tne docket and notices issued. 

From this it is obvious that the rule cannot be construed to extend 
the time allowed for filing proof of service, or to prevent abatement In 
cases where a copy of the notice or application has in fact been served 
upon the contestee, but proof thereof is not filed witnin the time allowed. 
In other w T ords: If service be properly made, or if service be defective in 
that only a copy of the notice or application was served, and proof is not 
filed within the time allowed the case abates. It is clear, therefore, that 
Rule 12 applies to and saves from abatement only those cases where it 
is shown by proof, filed before the time allowed under Rule 8 has expired, 
that a copy of the notice or application was served upon the contestee, but 
service is defective because of failure to serve copies of both notice and 
application. 

Any other construction of the rule would be inconsistent with good ad- 
ministration; would disrupt practice before all local offices and operate to 



18 CONTEST PROCEDURE 



the prejudice of intervening adverse interests in favor of a contestant 
guilty of laches. Even though no adverse interest has intervened, the 
contestant should, in the interest of good administration, be required to 
proceed de novo if at all; a re-opening of the case would require much 
correspondence to re-assemble the record. 

Where service is defective and the case is saved from abatement by 
the rule, there are two courses which may be pursued by the local offi- 
cers: They may extend the time allowed for the contestee to answer, in 
which event they must furnish him with a copy of the paper with which 
he was not served; or they may require the contestant to perfect service 
under their direction (Instructions, R. & R. Dickinson, "H" ENY, 124,- 
568, March 28, 1911). The latter course is the one usually followed. 
Alias notices are issued and transmitted to the contestant with a letter 
explaining the manner in which service must be made and notice given 
that un'ess service be made as directed and proof thereof filed* within 
thirty days from date of notice; or proper application for service by pub- 
lication be made, the case will be closed. On default no further oppor- 
tunity is afforded the contestant. 

ANSWER BY CONTESTEE. 

"RULE 13. Within thirty days after personal service of notice and affidavit 
of contest as above provided, or, if service is made by publication, within twenty 
days after the fourth publication, as prescribed by these rules, tne party served 
must fUe with the register and receiver answer, under oath, specifically meeting 
and responding to the allegations -of the contest, together with proof of service 
of a copy thereof upon the contestant by delivery of such copy at the address 
designated in the application to contest, or personally in the manner provided 
for the personal service of notice of contest. 

Such answer shall contain or be accompanied by the address at which all 
notices or other papers shall be sent for service upon the party answering." 

Before answering, the docket should be examined to see if proof of 
service is regular. If irregular on its face, the local officers will require 
the contestant is to perfect same unless the case has abated. If ser- 
vice is not perfected, it will not be necessary to answer as the case 
will be closed (Davidson v. Beattie, 14 L. D., 689). It frequently happens, 
however, that the proof appears regular on its face when in fact service is 
defective in some particular (L. D. Digest, Vols. 1-30, 383, Title Juris- 
diction, and cases cited under Rules 7 and 10). If such be the case and it 
is desired to attack service, this must be done before answering. By an- 
swering to the merits a general appearance is entered (Anderson v. Rey, 
12 L. D., 620) and the contestee cannot thereafter raise the question of 
jurisdiction on the ground of defective service (Smith v. Washburn, 12 
L. D., 14). Only the contestee or some one claiming under mm may 
raise the question of sufficiency of service (Barksdale v. Rhodes, 28 L. D , 
136, and cases cited). 

A motion to set aside proof of service should specifically set forth the 
defect or insufficiency complained of. It must be verified or supported by 
affidavits and served upon the contestant (Driscoll v. Morrison, 7 L. D., 
27). Service may be made personally or by registered mail directed to 
the address for service named by the contestant (Clause H, Rule 2). 
Proof of service must be the written acknowledgment of the person 
served or the affidavit of the person making service. Where service 
is made by registered mail, proof taereof must be the affidavit of the 
person mailing the letter, showing its contents, accompanied: by the 
postmaster's receipt issued when receiving the letter for registration. 
It is not necessary to show that the letter was received. 

The motion, with proof of service thereof upon the contestant, must 
ba filed before the time allowed for answer has expired; otherwise proof 



COX TEST PROCEDURE ^9 



of service of notice of contest being regular, judgment by default will be 
entered and the record transmitted to the General. Land Office for final 
action (Rule 14). The question of jurisdiction over the person of the 
contestee may be raised at any time when it has not been waived (Hatter 
v. Carmack's Heirs. 17 L. D., 532), but it is obviously preferable that this 
be done before the entry is erroneously canceled and the application 
of the contestant for the land allowed. 

If the objection be well taken, service will be set aside and the cas« 
dismissed unless the contestant applies for alias notices (Popp v. Doty, 
24 L. D.. 350). However, alias notices are always issued if requested 
and no advantage is gained by the delay, as the curing of laches induced 
by actual knowledge of contest is of no avail (Heptner v. McCartney, 11 
L. D.. 400; Marsh v. Hughes, 22 L. D , 581; Mason v. Wilson. 25 L. D., 
44). Therefore to avoid delay it is advisable to waive any question of 
jurisdiction over the person and answer to the merits 

If the motion be overruled the contestee will be allowed sufficient time 
to answer the charges. No provision is made by the rules for such 
cases, but it would seem clearly within the authority of the local offi- 
cers to make suitable provision (Rule 63; Hall v. Rugg. 17 L. D., 394). 

The answer (Appendix K) must be made by the contestee or someone 
claiming under him whose interest is shown by the records of the local 
office. Intervention by a person whose interest is not so shown, and who 
does not disclose his interest under oath (Rule 97) will not be allowed. 
On proper showing made under oath, the local officers may, in their dis- 
cretion, allow answer to be filed by a stranger to the record as the next 
friend of the contestee. The circumstances in each case must govern. 
If such an application be presented, it must be made clearly to appear 
that there is a good defense to the contest and that the contestee is una- 
ble, through illness or other incapacity, to answer within the time al- 
lowed. 

The answer must be under oath. It may be sworn to before any offi- 
cer authorized to administer oaths (Benschotter v Williams, 3 L. D., 
420). If executed before an officer who has no seal, his official character 
must be certified to by proper authority under seal. It should specifically 
deny each issuable fact alleged and conclude with a general denial of the 
charges laid in the application. The contestee's address for* service of 
notices and other papers must be correctly stated. Failure in this respect 
may result in judgment being rendered against him by default (Rules 14 
and 49). If the contestee be represented by an attorney or agent, author- 
ity (Appendix C) or power of attorney (Appendix D) should be filed; all 
papers will then be served upon the attorney or agent at the address 
given. 

The time within which answer must be served and filed is made clear 
by tne rule. In computing time observe Rule 94; and see Hart v.Hector, 
21 L. D., 164; Needs v. Hinze. 22 L. D., 640. Proof of service of answer 
must be the written acknowledgment of the person served or the affi- 
davit of the person making service, showing the time thereof When 
service is made by registered mail, proof thereof must be the affidavit of 
the person mailing the letter, showing its contents, accompanied by the 
receipt issued by the postmaster when receiving the letter for registra- 
tion. It is not necessary to show that the letter was received by the 
contestant. (Rule 16). It must have been mailed to the contestant's ad- 
dress for service (Clause H. Rule 2). The day of service is the day the 
letter was mailed. 



20 CONTEST PROCEDURE 



FAILURE TO ANSWER. 

"RULE 14. Upon the failure to serve and file answer as herein provided, the 
allegations of the contest will be taken as confessed, and the register and re- 
ceiver will forthwith forward the case, with recommendation thereon, to the 
General Land Office, and notify the parties by registered mail of the action 
taken." 

If answer and proof of service have not been filed, on the day fol- 
lowing the last day allowed by Rule 13 the register and receiver will 
render decision recommending cancellation of the entry and transmit 
the record to the General Land Office for action. While an appeal will 
not lie from a decision of the local officers rendered on default (Rule 49) 
their action is not final and the entry will not be canceled and the filing 
of the contestant accepted until the record is passed upon by the Com- 
missioner and cancellation ordered (L. D. Digest, Vols. 1-30, 196, Sub-title 
Cancellation, 381). On the same day the record is transmitted to the 
General Land Office a copy of the decision of the local officers will be 
sent to the contestee by registered mail (Instructions, 29 L D., 649; Cir- 
cular No. 20. May 31, 1911) at his address of record, and to the contestee 
by ordinary mail. 

No provision is made by the rules for the re-opening of a case on pe- 
tition for hearing after default has been entered (Langen v. Rolighed, 
Dickinson 02395, Commissioner's decision) and the only question which 
may be raised thereafter is that of jurisdiction. This question may be 
raised at any stage of the proceedings (Hatter v. Carmack's Heirs, 17 
L. D., 532). Jurisdiction is acquired by -due service of notice (Stayton 
v. Carroll, 7 L D., 200, and cases cited), not by the filing of the contest ap- 
plication (Vincent v. Gibbs, 24 L. D., 383) and where the contestee has 
not been made a party to the proceeding, the land department is without 
jurisdiction to render a judgment affecting the status of his entry (Long 
Jim et al v. Robinson et al., 17 L. D., 348). 

The rules do not provide for the disposition of cases where, after issue 
joined and hearing ordered the contestant or both the contestant and 
contestee default on the day of hearing. In such cases the local offi- 
cers will render decision dismissing the contest (Jackson v. Jackson, 1 
L. D., 112) ; notify the contestant by registered mail, the contestee by or- 
dinary mail and transmit the record to the Commissioner, by whose order 
the case will be finally closed (Anderson v. Heirs of Heyerholm, Dickin- 
son 09631; Kjos v. Johnson, Dickinson, 06807, Commissioner's decis- 
ions). 

DATE AND NOTICE OF TRIAL. 

"RULE 15. Upon the filing of answer and proof of service thereof, the reg- 
ister and receiver will forthwith fix time and place for taking testimony, and 
notify all parties thereof by registered letter mail not less than twenty days in 
advance of the date fixed." 

As soon as the answer and proof of service have been filed the local of- 
ficers will set the case for taking of testimony and fix the day of hearing 
Where the land involved is some distance from the local office, it is the 
practice (for the convenience of the parties) to set the case for the 
taking of testimony before an officer near the land who is authorized to 
administer oaths, i. e, a United States Commissioner. County Judge, 
Clerk of Court, Justice of the Peace, or Notary Public, to whom a letter 
of authority (Appendix L) is issued. Authority to take testimony and a 
copy of the notice of hearing will be sent to the officer designated at the 
time notice is mailed to the parties. Where a case is set before a Justice 
of the Peace, he must have his official character duly certified to and 
transmit such certificate with the transcript of the proceedings. 



CONTEST PROCEDURE 21 



Notice of hearing (Appendix M) specifying the time, place and officer 
before whom testimony is to be taken and describing the land (Ex Parte 
Gentzler et al.. 13 L. D. 429) and giving notice of the date of final hearing 
will be served by the local officers upon the parties, their attorneys or 
agents, by registered mail at least twenty days in advance of the date of 
taking testimony. Notice will be sent to the addresses of the contestant 
and contestee for service (Clause H, Rule 2; Rule 13, p. 18). Delivery 
of the notice at such addresses twenty days in advance of the taking of 
testimony is sufficient for all purposes (Rule 16) and it is immaterial 
whether the notice be received or not (Kelly v. McWilliams 12 L. D., 
403; Curtis v. O'Day. Dickinson 01824, Commissioner's decision). Should 
the contestant default, the case will be dismissed (Rule 14, p. 20). If 
the contestant appears and the contestee defaults, the case will be dis- 
posed of under Rules 14 and 49. 

PLACE OF SERVICE OF PAPERS. 

"RULE 16. Proof of delivery of papers required to be served upon the con- 
testant at the place designated under clause (h) of Rule 2, in the application to 
contest, and upon any adverse party at the place designated in the answer, or at 
such other place as may be designated in writing by the person to be served, 
shall be sufficient for all purposes; and, where notice of contest has been given 
by registered mail, and the registry return receip't shows the same to have been 
received bv the adverse party, proof of delivery at the address at which such no- 
tice was so received, shall, in the absence of other direction by such adverse 
party, be sufficient. 

Where a party has appeared and is represented by counsel, service of papers 
itpon such counsel shall be sufficient." 

Service of notice of contest, personally and by publication; motion 
to set aside iprooif of service (p. 18); Answer (p. 19); default decision 
(p. 20); and notice of hearing have been considered. If a party has ap- 
peared generally or specially, and is represented by an attorney or agent, 
service upon such attorney or agent i:i accordance with these rules will 
be sufficient. Service must be made at the address for service given in 
the application and answer. 

CONTINUANCE. 

"RULE 17. Hearing may be postponed because of absence of a material wit- 
ness when the party applying for continuance makes affidavit, and it apears to 
the satisfaction of the officer presiding at such hearing that: — 

(a) The matter to which such witness would testify if present is material. 

(b) That proper diligence has been exercised to procure his attendance, and 
that his absence is without procurement or consent of the party on whose oe- 
hal'f continuance is sought. 

(c) That affiant believes the attendance of said witness can be had at the 
time to which continuance is sought. 

(d) That the continuance is not sought for mere purposes of delay." 

In considering this rule it is well at the outset to distinguish between 
the terms "taking of testimony" and "hearing." For the convenience of 
the parties, testimony is frequently taken by an officer near the land in 
controversy on authorization (Appendix L), or commission issued to take 
depositions orally or on interrogatories, but the hearing is never before 
anyone but the register and receiver, nor at any other place than the 
local land office (Schneider v. Bradley, 1 L. D., 132; Dorman v. Mc- 
Combs, 14 L. D., 703; U. S. v. Lopez, 17 L. D., 324; Dahlquist v. Cotter. 34 
L. D., 397) The day on which testimony is taken is often loosely referred 
to as the "hearing." This is an erroneous use of the term. When testi- 
mony is taken near the land by an officer appointed under Rule 28 a day. 
usually a week or ten days after the taking of testimony, is designated 
by the register and receiver for the consideration of the record. This is 
the day of hearing. 



22 CONTEST PROCEDURE 



The same rules govern registers and receivers and officers taking testi- 
mony in granting continuances. The scope of their authority, however, 
is different. Officers taking testimony have no authority to continue a 
case beyond the day of hearing (Erickson v. Way, 2 L. D., 233; Bucklin 
v McEachran. 16 L. D., 107). A construction of the rule giving them au- 
thority to continue a case beyond the day of hearing would result in 
abuses and deprive the local officers of the power of supervision neces- 
sary to insure proper conduct of proceedings before them. Applications 
for continuance beyond the day of hearing must be addressed to the reg- 
ister and receiver and filed in the local office- (Heartley v. Ruberson, 11 
L. D., 575). 

A continuance may be effected by agreement of the parties when ap- 
proved by the officer taking testimony (within the scope of his authority) 
or the local officers (Woodard v. Percival et al., 4 L. D., 234) or by proper 
spplication in that behalf. When stipulating for a continuance, the day 
to which it is sought to have the case continued must be specified; an 
indefinite postponement of a case is. in effect, a dismissal of it (Lewis 
v. Smith, 10 L. D., 461). Ordinarily a continuance will be granted on stip- 
ulation of the parties, but it cannot be demanded as of right (Woodward 
v. Percival, ante). 

The showing required to be made before continuance will be granted 
must be by affidavit. Such affidavit should be executed by the party ap- 
plying for continuance, his attorney or agent (Bucklin v. McEachran, 16 
L. D., 107). It may be sworn to before any officer authorized to admin- 
ister oaths, having an official seal, and on or before the day of hearing 
(Coughlin v. Donan. 5 L. D., 142). It must set forth the facts intended 
to be proved "ay the absent witness (Hicks v. Barrum, 3 L. D., 581) ; show 
what effort nas been made to procure his attendance; that his absence is 
without procurement or consent (Smith v. Smart, 7 L. D., 108); that it is 
believed his attendance can be secured at the time to which continuance 
is sought; and toat the continuance is not sought for mere purposes of 
delay. 

Motions for continuance are addressed to the sound discretion of the 
local officers subject to review by the appellate tribunal (U. S. v. Conners 
et al., 5 L. D.. 649; Dayton v. Dayton, 6 L. D., 165; Windsor v. Sage, 6 
L. D., 440; Uppendahl v. White, 7 L D, 60; Bell v. Houston, 27 L. D.. 
101). The motion will not be granted without proper showing of dili- 
gence (Benedict v. Heberger, 5 L. D. 273; Smith v. Smart, on review, 
7 L. D., 497). 

Continuance may be allowed in case of surprise on due showing (Pack- 
ard v. Jackson, 1 L. D., 105), but cannot be demanded as a matter of 
right on the ground that the applicant's attorney is engaged in a trial in 
another court (Redding v. Riley. 9 L. D., 524). 

Applications for continuance, by agreement or otherwise must be made 
on or before the day of hearing (Cougnlin v. Donan, 5 L. D., 142; Harper 
v. Ben, 8 L. D.. 197). It does not matter that testimony has already been 
taken by another officer appionted under Rule 28 (Chinn v. Gage, 10 L'. D., 
480). If the continuance be granted, proper notation will be ma'de on the 
docket and the parties notified (Bidwell e t al v. Becker 3 L D 588) 
If the application is not filed in time, and no appearance is made on the 
day of hearing, default will be entered (Rule 14, p. 20). 

If the contestant, or both the contestant and contestee fai 1 to appear 
on the day to which a continuance has been granted, the case will be 
dismissed (Jackson v. Jackson, 1 L. D„ 112; Johnson v. Price, 13 L. D. 
390; ante p. 20). If the contestant appears and the contestee defaults, 
cancellation will be recommended (Rules 14 and 49). 



CONTEST PROCEDURE 



"ROUS 18. One continuance only shall be allowed to either party on ac- 
count of absence of witnesses, unless the party applying for further continuance 
shall, at the same time, apply for order to take the testimony of the alleged 
absent witness by deposition." 

If on the day to which hearng has been continued the witness be still 
absent, the party on whose behalf his testimony is desired should apply 
for an order to take his testimony by deposition. When applying for 
such an order, application for continuance must be made in accordance 
with Rule 17 (Lyman v. Miller, 16 L. D., 295). Depositions may be taken 
on oral examination or upon written interrogatories (Rules 20 to 27). 
When it is desired to haye testimony taken on written interrogatroieB, 
it is not essential that the interrogatories be filed when applying for 
order to take the deposition. Failure to file them at that time does not 
justify a denial of the motion. It is sufficient if the interrogatories be pre- 
pared with reasonable diligence (Westervelt v. Johnson, 31 L. D., 67). 

"RULE 19. No continuance shall' be granted if the opposite party shall 
admit that the witness, on account of whose absence continuance is desired, 
would, if present, testify as stated in the application for continuance (Hosek 
v. Glineidki, 4 L. D., 385; Gray v. Dawkins, 20 L«. D., 342). 

Continuance will be granted on behalf of the United States when the public 
interest requires the same, without affidavit on the part of the Government." 

Formerly continuance on behalf of the United States was granted in 
accordance with practice before United States' Courts. This practice no 
longer obtains. United States cases will be continued whenever the in- 
terest of the government requires such action (U. S. v. Taylor, et al., 17 
L. D., 508). Failure of the government to have a representative present 
at the time and p.ace fixed for hearing is no bar to a second order for 
a hearing (Ex Parte Muller, 39 L. D., 72). 

DEPOSITIONS ON INTERROGATORIES. 

"RULE 20. Testimon}- may be taken by deposition when it appears by affi- 
davit that: — ■ 

(a) The witness resides more than 50 miles, by the usual traveled route, from 
the place of trial. 

(b) The witness resides without, or is about to leave, the state or territory, 
or is absent therefrom. 

(c)) From any cause it is apprehended that the witness may be unable to, 
or will refuse to, attend the hearing, in which case the deposition will be used 
only in the event personal attendance of the witness cannot be obtained." 

"RULE 21. The party desiring to take deposition must serve upon the ad- 
verse party and file with the register and receiver, affidavit setting forth the 
name and address of the witness and one or more of the above-named grounds 
for taking such deposition, and that the testimony sought is material; which 
affidavit must be occomplished by proposed interrogatories to be propounded to 
the witness." 

"RULE 22. The adverse party will, within 10 days after service of affidavit 
and interrogatories, as provided in the preceding rule, serve and file cross-inter- 
rogatories." 

"RULE 23. After the expiration of 10 days from the service of affidavit for 
the taking of deposition and direct interrogatories, commission to take the depo- 
sition shall be issued by the register and receiver directed to any officer author- 
ized to administer oaths within the county where such deposition is to be taken, 
which commission shall be accompanied by a copy of all interrogatories filed. 

Ten days' notice of the time and place of taking deposition shall be given, by 
the party in whose behalf such deposition is to be taken, to the adverse 
party." 

"RULE 24. The officer before whom such deposition is taken shall cause 
each interrogatory to be written out, and the answer thereto inserted imme- 
diately thereafter, and said deposition, when completed, shall be read over to 
the witness and by him subscribed and sworn to in the usual manner before 
the witness is discharged, and said officer shall thereupon attach his certificate 
to said deposition, stating that the same was subscribed and sworn to at the 
time and place therein mentioned." 



24 CONTEST PROCEDURE 



"RULE 25. The deposition, when completed and certified as aforesaid, to- 
gether with the commission and interrogatories, must be inclosed in a sealed 
package, indorsd with the title of the proceeding in which the same is taken, 
and returned bv mail or express to the register and receiver, who will indorse 
thereon the date of reception thereof, and time of opening said deposition." 

"RULE 26. If the officer designated to take the deposition has no official 
sea], certificate of his official character under seal must accompany the return 
of the deposition." 

Ordinarily testimony is taken near the land in controversy by an officer 
designated by the register and receiver under Rule 28, and, as the wit- 
nesses usually reside in the vicinity, it is seldom necessary to take testi- 
mony by deposition. Sometimes, however, it is necessary to take the 
testimony of a witness in this way if it is to be secured at all. When 
necessary to take depositions, it is usually more desirable that it 
be done on oral examination than on written interrogatories. However, 
if it is sought to have them taken on interrogatories, this may be done 
on agreement of the parties (Rule 27) or by proper application in that 
behali. 

Usually it will be known before a case is set for hearing whether it will 
be necessary to take the depositions of witnesses whose attendance it 
is apprehended, cannot be procured. In such case arrangements should 
be made to take their depositions as soon as possible after the case is 
set for trial in order that they may be introduced in evidence on the 
day of hearing. It has been held that after proceeding to trial and sub- 
milting evidence, it is too late to apply for the taking of testimony by 
deposition (McCallen v. Lerew, 7 L. D., 292). However, in case of 
surprise (Packard v. Jackson. 1 L. D., 105) where it is shown on motion 
for continuance that the attendance of material witnesses cannot be pro- 
cured (Rule 17, p. 21, et seq.) an application to take their depositions is 
made in time if presented on the day of hearing (Harper v. Bel 1 , 8 L. D., 
197) even though testimony has already been taken near the land in 
controversy by an officer appointed under Rule 28 (Chinn v. Gage, 10 L. 
D., 480; Rule 18). 

Where the depositions are to be taken on agreement the parties should 
prepare interrogatories and file them with stipulation specifying the 
time, place and officer before whom it is desired to have the depositions 
taken. The register and receiver will then issue commission, with all in- 
terrogatories attached, to the officer designated. 

If the parties cannot agree, it will be necessary for the party desiring 
to take depositions to make application therefor, specifying one or more 
of the grounds mentioned in Rule 20. The showing required to be made 
before commission will issue must be made by affidavit (McCoy v. Stock- 
ing 16 L. D., 97). The affidavit should be executed by the party on 
whose behalf the application is made, his attorney or agent (Bucklin v. 
McEachran. 16 L. D., 107). 

The papers required to be served upon the adverse party are: Notice 
of Intention to Take Depositions on Interrogatories (Appendix N) ; Affi- 
davit and Motion for Commission to Take Depositions on Interrogatories, 
(Appendix O) ; and tne direct interrogatories to be propounded to eacn 
witness. The "Notice of Intention" must specify the names of the wit- 
nesses, and the time, place, and officer before whom their depositions 
are to be taken. The "Affidavit and Motion" must specify the name and 
address of each witness, state one or more of the grounds on which his 
deposition may be taken, show that their testimony is material; that no- 
tice has been duly served upon the adverse party, and conclude with a 
motion for issuance of commission to an officer named specifying the 
time and place for the taking of the depositions. Any officer authorized, 
to administer oaths within the county where the depositions are to be 



CONTEST PROCEDURE 25 



taken may be designated (Rule 23). Thes3 papers must be esrved in the 
same manner as an answer to contest (Rule 13, p. 19). The return, or 
proof of service (Appendix N) must show that a copy of each paper, i. e., 
the •notice of intention"; the "affidavit and motion"; and interrogatories 
was served. As soon as service is made copies of all papers, with proof 
of service thereof must be filed in the local office (Heartley v. Ruberson, 
11 L. D., 585). They should never be filed with an officer appointed to 
take testimony under Rule 28. 

Ten days, exclusive of the day of service (Rule 94), are allowed the ad- 
verse party within which to serve and file cross interrogatories (Rule 
22) or objection to the sufficiency of the application, or to the issuance of 
commission to the officer named because of bias or hostility (Sparks 
v. Galvin, 8 L. D.,534). Service of the cross interrogatories or of the ob- 
jection should be made in the same manner as service of answer to con- 
test (Rule 13, p. 19). If the adverse party files cross interrogatories, or 
if he fails to take any action within the time allowed him, and it appears 
that the party applying to take the depositions has complied with the 
rules of practice (U. S. v. Lopez, 17 L. D. 321), and due notice has been 
given (Schneider v. Gradley, 1 L. D., 132; Manuel v. Miller. 7 L. D., 433; 
Gehman v. Culp 7 L. D., 449) the register and receiver will enter an order 
on the docket (Bushnell v Burtt 5 L. D., 212) and issue commission (Ap- 
pendix P), with all interrogatories attached, to the officer named in the 
aplication. Both local officers should sign the commission, but failure of 
one of them to do so will not defeat the consideration of the depositions 
taken thereunder unless objection is made when thev are sought to be 
introduced in evidence (Bruner v. Mitchell, 25 L. D.. 439). The objec- 
tion, though made in time, should not be sustained unless prejudice 
to rights to be shown. There would seem to be no good reason why 
the omitted signature could not be supplied nunc pro tunc (Anderson v. 
Morrison, 12 L. D., 642). 

The deposition must be taken at the time and place designated and 
before the officer named (Instructions, 3 L. D., 195). When such officer 
cannot act, the depositions may be taken before any other qualified officer 
designated for that purpose by the officer named in the commission (Dur- 
kin v. Lindstrand, 11 L. D., 418), or by agreement of the parties (Rule 
31). 

The officer taking the depositions must cause each interrogatory to be 
written out and the answer inserted immediately thereafter. When each 
deposition is complete, it must be read to or by the witness, and be 
subscribed and sworn to by him beiore the officer taking same before 
he is discharged (Rule 24; Atkinson et al. v. Sykes, 25 L. D., 143). 

Where depositions are taken on interrogatories, the rie:ht of either 
party to examine a witness is confined to the interrogatories attached to 
the commission (Jackson v. Farrall, 4 L. D., 377). An officer taking de- 
positions is not authorized to take that of any witness not named in 
the application for his appointment (Leimbach v. Lane. 9 L. D.. 137). All 
witnesses except the one whose deposition is being taken may be ex- 
cluded (Rule 33). 

As soon as the depositions have been completed, the officer must attach 
his certificate thereto, stating that same were subscribed and sworn to 
at the time and place therein mentioned (See Return of Commission, Ap- 
pendix P), enclose the commission, interrogatories and depositions 'in a 
sealed package, endorse the title of the cause thereon, and transmit same 
by mail or express (McKinney v. Dooley, 5 L. D.. 362) to the register and 
receiver by whom the commission was issued (Rule 25). Personal de- 
livery of the depositions by such officer does not preclude their considera- 
tion in the absence of a showing that rights have been prejudiced thereby 



2b 



7 7.: ::: 7:: 



(Bushne!] v Earl :~ 1. D., 4), but they should never be entrusted to any- 
one else foi Selivery McKinney v. Dooley. ante). Failure m endorse the 
title ::' the ;::::-:::: Dn the package will not exelude the iepasitions 

from consideration in the absence of apparent oreiudice tn The interest 

:: the parties Fierce v. McDougal. 11 L. D.. 183). Irregularities in the 

transmission : lepositions may be "waived, by agreement of the parties 

and are held to be waived if no objection be made when they 

_:.: to be introduced in evidence i Stoweli v. Clyatt, 10 L. D.. 

1 

When receive". al the Local since the register and receiver will endorse 
thereon the date of reception an:: the time :: opening same. If advantage 
ight tc be taken of failure :: the local officers n this respect, objec- 
tion must be made at the time the depositions are offered in evidence (Id). 
On principle i: would seem that such an objection even if made in time, 
should not he sustained unless it be shown that the rights of the party 
raising the mestion have been prejudiced. 

DEPOSITIONS ON ORAL EXAMINATION, 

■Rl77 27 Deposition may, by stipulation fled with the register and re- 
: . be taken before any officer authorized to administer caths, and either by 
oral examination or upon written interrogate r: e s 

The Aetof Januar: 1, 1901 I. Stat, 790) provides inter alia. 

"That registers and receivers of the land office, or either of them, in all mat- 
i - quiring a hearing before them, are authorized and empowered * * * *.' r 
i. That whenever the witness resides outside the county in which 
hearing occurs any party tc the proceeding may take the testimony of such 
witness in the county of such witness's residence in the form of depositions 
by giving ten days' written notice of the time and place of taking such depo- 
sitions to the opposite tarty or parties. The depositions may be taken before 
any United States Eommissioner, notary public, judge or clerk of a court of 
record. Subpoenaes for witnesses before the officer takine deDositions may 
issue from the office of the register or receiver, or may be issued by the officer 
taking the depositions * * B *." The fees of the officer taking the deposi- 
tions shall be the same as those allowed in the State or Territorial courts, and 
laid by the rarty taking the depositions * * * *.' 

That whenever the taking of any depositions taken in pursuance of 
the foregoing provisions of this Act is : meluded the opposite par:: may pre seed 
at once at his own expense to take depositions in his own behalf, at the same 
time and place and before the same officer: Provided. That he shall, before tak- 
ing up the depositions in the first instance is entered upon, give notice to the 
opposing party, or any agent or attorney representing him in the taking of saia 
depositions, of his intention to do so." 

Depositions may he taken on oral examination on agreement of the 
parties w by proper application in that behalf nnder the statute (Del- 
felder v. Slatte:; 34 L. D.. 3 9 S • . On agreement :: the parties such ie- 
ions may he taken before any officer authorized to administer oaths 
within the county where same are to be taken (Rule 23). When taken 
on agreement the parties should file stipulation specifying Hie time. 
place., and officer before whom it is desired to have them taken. The 
register and receiver will issue commission tc the office] iesignated. 

If the adverse party will not stipulate, the party lesiring to take depo- 
sitions must make application under section four of the act cited. The 
showing required to be made before commission will issue must be by 
affida- : :: fry v. Stocking. 16 L. D., \~ ; which should be executed by 
the party, his agent or attorney (Bucklin v. McEachtan. 16 L. D.. 107 

The papers required to be served upon the adverse party are: Notice 
of Intention to Take Depositions on Oral Examination (Appendix Q) and 
Affidavit and Motion for Commission to Take Depositions on Oral Exam- 
ination (Appendix R'i. These appendices indicate the matters required 
to be stated. The officer named in the application for commission must 



CONTEST PROCEDURE 



be a United Stares Commissioner, Judge or Clerk of a court of record, or 
a notary public. No other officer is authorized by the statute. 

The "notice of intention" and "affidavit and motion" must be served 
in the same manner as the answer to contest (Rule 13, p. 19). Proof of 
service must show that a copy of each paper was served. As soon as 
service is made, copies of these papers, with proof of service, must be 
filed in the ^ocal office. 

The adverse party is allowed ten days after service upon him within 
which to serve and file objection to the sufficiency of the application, 
or to the issuance of commission to the officer named n the application 
(Sparks v. Garvin. 8 L. D., 534). Notice of objection should be served in 
the same manner as the answer to contest (Rule 13, p. 19). If no objec- 
tion be served and filed within the time allowed, commission (Appendix 
S) will issue to the officer designated provided he is qualified under the 
statute. 

The depositions must be taken at the time and place designated and 
before the officer named unless he is unable to act; in which event they 
may be taken before any other officer qualified under the statute who is 
designated for that purpose by the officer named in the commission (Dur- 
kin v. Lindstrand, 11 L. D., 418) or by agreement of the parties (Rule 

31). 

Officers taking depositions under this act are governed by Rules of 
Practice Xos. 33 to 40. inclusive, regulating trials before registers and 
receivers (Warner v. Finnerty, 10 L. D., 436). 

The testimony of all witnesses produced, whether named in the appli- 
cation for commission or not, may be taken on behalf of either party. 
and subpoenas (Appendix T) may be issued by the register and re- 
ceiver or the officer taking the depositions to secure their attendance. 

Unless testimony is taken in shorthand, each deposition must be writ- 
ten out in long hand by or under the direction of tie officer, and be sub- 
scribed and sworn to before him by the witness before being discharged. 
If testimony is taken in shorthand, Rule 39 of Practice must be strictly 
complied with. 

As soon as the depositions are complete, the officer must execute the 
return on the commission (Appendix S) and transmit same, together 
with the depositions, to the register and receiver as required by Rule 25. 
See cases cited with reference to depositions taken on interrogatories, p. 
25. 26. 

All costs incurred in the taking of depositions under this Act must 
be paid by the party on whose beha'f same were taken (Delfelder v. 
Slattery. 34 L. D., 398). 

TAKING OF TESTIMONY BY ORDER OF REGISTER AND RECEIVER. 

"RULE 28. Testimony may, by order of the register and receiver and after 
such notice as they may direct, be taken by deposition before a United States 
commissioner, or other officer authorized to administer oaths near the land 
in controversy, at a time and place to be designated in a notice of sucn taking 
of testimony. The officer before whom such testimony is taken will, at the com- 
pletion of the taking thereof, cause the same to be certified to, sealed, ana 
transmitted to the register and receiver in the like manner as is provided with 
reference to depositions." 

The register and receiver may direct that testimony be taken near the 
land in controversy (U. S. v. Raymond, 4 L. D., 440) before any officer au- 
thorized to administer oaths who may be designated by them for that 
purpose, Wndsor v. Sage, 6 L. D. 440; O'Connor v. Rankin, 9 L. D. 209). 
This is a matter which rests in the discretion of the local officers, and 
their action w 7 ill not be disturbed except upon clear proof of abuse (Still 
v. Oakes 25 L. D., 466; U. S. V. Lopez, 17 L. D., 321). 



28 CONTEST PROCEDURE 



Formerly it was the practice for registers and receivers to designate 
an officer to take testimony near the land only upon application of one of 
the parties (Dorman v. Sparks, 14 L. D., 700), but it is now the practice 
for them on their own motion, to designate an officer near the land 
where it is any considerable distance from the local office. 

The officer designated should not be open to the charge of bias or preju- 
dice (Sparks v. Galvin 8 L. D., 534; Warner v. Finnerty, 10 L. D., 437). 

Where testimony is taken by order of the register and receiver, it is not 
necessary that a commission be issued to the officer designated (McGrade 
v. Murray. 23 L. D., 140). A letter authorizing him to act (Appendix L) 
is sufficient. As regards the manner in which cases are set for the taking 
of testimony, see Rule 15, p. 20, 21. 

Officers taking testimony under this rule are governed by Rules of 
Practice 33 to 40, inclusive, regulating trials before registers and re- 
ceivers (Warner v. Finnerty, 10 L. D, 436). Unless testimony be taken 
in shorthand, the testimony of each witness must be written out and be 
subscribed and sworn to by him before he is discharged. When taken 
in shorthand Rule 39 of Practice must be strictly complied with. As 
soon as the testimony has been completed, the officer must attach his 
certificate thereto and transmit same to the local office, observing Rule 
25. See cases cited with reference to depositions taken on interrogatories, 
p. 25, 26. 

"RULE 29. No charge will be made by the register and receiver for examin- 
ing testimony taken by deposition." 

See Rule 56. The costs taxed are to reimburse the officer taking the 
testimony for his services. He is not required to account to the register 
and receiver for the moneys received. 

"RULE 30. Officers designated to take testimony will' be allowed to charge 
such fees as are chargeable for similar services in the local courts, the same to 
be taxed in the same manner as costs are taxed by registers and receivers." 

See Rules of Practice Nos. 53, 54. 55, 57, 59 and 60. 

However, where depositions are taken under Sec. 4 of the Act of Jan- 
uary 31 1903, (32 Stat. 790), the entire cost of such deposition must be 
borne by the party on whose behalf they are taken (Delfelder v. Slat- 
tery, 34 L. D., 398). 

"RULE 31. "When the officer designated to take deposition cannot act at the 
time fixed for taking the same, such deposition may be taken at the same time 
and place before any other qualified officer designated for that purpose by the 
officer named in the commission or by agreement of the parties." 

Durkin v. Lindstrand, 11 L. D., 418. But where depositions are taken 
under Section 4 of the Act of January 31, 1903, ante, the officer desig- 
nated (unless same are being taken by stipulation of the parties) must 
be empowered to act by the statute. 

"RULE 32. No order for the taking of testimony shall be issued until after 
the expiration of time allowed for the filing of answer." 

On failure to answer the charges of contest will be taken as confessed 
and decision of cancellation rendered (Rule 14, p. 20.) 

TRIALS. 

"RULE 33. The register and receiver and other officers taking testimony may 
exclude from the trial all witnesses except the one testifying and the parties to 
the proceedings." 

"RULE 34. The register and receiver will be careful to reach, if possible, the 
exact condition and status of the land involved in any contest, and will ascer- 
tain all the facts having any bearing upon the rights of parties in interest- to 



CONTEST PROCEDURE 29 



This end said officers should, whenever necessary, personally interrogate and 
direct the examination of a witness." 

••RULE: S5. In pre-emption cases the register and receiver will particularly 
ascertain the nature, extent and value of alleged improvements; by whom 
made, and when: the true date of the settlement of persons claiming; the steps 
taken to marke and secure the claim; and the exact status of the land at that 
date as shown upon the records of their office." 

■RULE! 36. In like manner, under the homestead and other laws, the condi- 
tions affecting the inception of the alleged right, as well as the subsequent acts 
of the respective claimants, must be fully and specifically examined." 

"RULE 37. Due opportunity will be allowed opposing claimants to cross-ex- 
amine witnesses." 

"RULE! 38. Objections to evidence will be duly noted, but not ruled upon, by 
the register and receiver, and such objections will' be considered by the com- 
missioner. Officers before whom testimony is taken will summarily stop exam- 
ination which is obviously irrelevant." 

""RULE 39. At the time set for hearing, or at any time to which the trial may 
be continued, the testimony of all the witnesses present shall be taken and re- . 
duced to writing. 

TVhen testimony is taken in shorthand the stenographic notes must be tran- 
scribed, and the transcription subscribed by the witness and attested by the 
officer before whom the testimony was taken: Provided, however, That when 
the parties shall, by stipulation, filed with the record, so agree, or when the de- 
fendant has failed to appear, or fails to participate in the trial, and the con- 
testant shall in writing so request, such subscription may be dispensed with. 

The transcript of testimony shall, in all cases, be accompanied by certificate of 
the officer or officers before whom the same was taken showing that each wit- 
ness was duly sworn before testifying, and, by affidavit of the stenographer who 
took the testimony, that the transcript thereof is correct." 

"RULE 40. If a defendant demurs to the sufficiency of the evidence, the reg- 
ister and receiver will forthwith rule thereon. If such demurrer is overruled, and 
the defendant elects to introduce no evidence, no further opportunity will' be 
afforded him to submit proof. 

When testimony is taken before an officer other than the register and receiver, 
demurrer to the evidence will be received and noted, but no ruling made thereon, 
and the taking of evidence on behalf of the defendant will be proceeded with; 
the register and receiver will rule upon such demurrer when the record is 
submitted for their consideration. 

If said demurrer is sustained, the register and receiver will not be required 
to examine the defendant's testimony. If, however, the demurred be overruled,, 
all the evidence will be considered and decision rendered thereon. 

Upon the completion of the evidence in a contest proceeding, the register and; 
receiver will render joint report and opinion thereon, making full and specific 
reference to the posting and annotations upon their records." 

"RULE 41. The register and receiver will, in writing, notify the parties to- 
any proceedings of the conclusion therein, and that fifteen days will be al- 
lowed from the receipt of such notice to move for a new trial upon the ground: 
of newly discovered evidence, and that if no motion for new trial is made, 
thirty days will be allowed from the receipt of such notice within which to ap- 
peal to the commissioner." 

The established rules of evidence govern the introduction of testimony 
before registers and receivers and officers taking testimony (2 L. D. 234; 
Ex Parte Burns, 4 L. D. 64). 

All witnesses except the one testifying may be excluded from the trial 
(Rule 33). This is a simple statement of the common law rule. 

The burden of the proof is upon the contestant (Neff v. Cowhick, 6 L. 
D„ 660; Mos"s v. Quincy, 7 L. D , 373; Willis v. Parker, 8 L. D., 624; Ex 
Parte Cornwell, 9 L. D., 340; but where a hearing is ordered to deter- 
mine rights of adverse applicants see Dever et al. v. Ayars, 28 L. D.. 169) 
to prove the charges as laid in his application (Nelson v. Phelps, 5 L. D., 
329; Cropper v. Hoverson, 13. L. D ., 90; Miller v. Worner, 27 L. D., 247) 
by a preponderance of the evidence (Scott v. King, 9 L. B. 299; Ex Partei 
Bickford 7 L., D., 374) whether parol or record, or both parol and record 
(C. P. R. R. Co. v. Shepherd, 9 L. D, 213). 

In order to bring out the 'fiacfcs, officers taking testimony may per- 
sonally direct the examination of witnesses' (2 L. D., 234; Rules^ of 
Practice, Nos. 34, 35, 36). 

—4 



30 CONTEST PROCEDURE 



Due opportunity will be allowed opposing parties to cross-examine wit- 
nesses (Gibson v. Chaney, 14 L. D. 471; Rule 37.) 

All objections will be noted in tbe record, but officers presiding at the 
taking of testimony bave no autbority to rule upon tbe admissability of 
evidence. They may, bowever, summarily stop obviously irrelevant ques- 
tioning (Rule 38) or, in tbeir discretion, allow tbe examination to pro- 
ceed at tbe sole cost of tbe party making same (Rule 54; Taylor v Foote 
18 L. D., 559). 

It is often difficult to determine wbetber testimony is admissible in evi- 
dence. To be admissible it must relate to facts wbicb are both logically 
and legally relevant. Facts are logically relevant wben tbey are so re- 
lated tbat according to tbe common course of events one of tbem, taken 
by itself or in connection witb otber facts proves or renders more prob- 
able tbe past, present, or future existence or nonexistence of tbe otber 
(Stephens' Dig. Ev., Art. 1). "Facts in issue are facts which are essen- 
tially involved in the decision of a cause, and evidence of their exist- 
ence or nonexistence is legally relevant Facts not in issue but which 
are logically relevant to a fact in issue, and which, if true, conclusively 
establish the existence or nonexistence of such fact, or, any fact legally 
relevant to such fact are themselves legally relevant. If, however, such 
facts merely render more or less probable tbe existence or nonaxistence 
of such fact, their admissibility, as a general rule, rests in tbe sound dis- 
cretion of the court." (Hughes Ev., 35). The rule is clear enough, but its 
application in a given case is frequently difficult. If the officer presding 
at the taking of testimony entertains the slightest doubt as to the rele- 
vancy of evidence desired to be submitted he should never stop the exam'- 
nation, but allow it to proceed at the cost of the party making it. 

Officers commissioned to take depositions on oral examination, those 
designated to take testimony under Rule 28. and registers and receivers 
must see that the testimony of each witness is reduced to writing (Rule 
39). Unless testimony is taken in shorthand, the testimony of each wit- 
ness must be written out in longhand by or under direction of the officer, 
and be subscribed and sworn to before him by tbe witness before he is 
discharged. If testimony is taken in shorthand, the parties, their at- 
torneys or agents must sign, and file with the record, a stipulation waiv- 
ing signatures of the witnesses to their testimony; the stenographer 
must make affidavit that tbe transcript is true and correct, and the officer 
must certify that each witness, naming them, was duly sworn by him 
before testifying. If these formalities are not complied with the tran- 
script cannot be accepted as evidence in the case (Evans v. Dawes 35 
L. D., 332). 

When all the testimony on behalf of the contestant has been submitted 
and he has rested bis case, the contestee may raise the question of the 
sufficiency of the evidence by demurrer thereto. Such a demurrer is, in ef- 
fect, an admission on the part of the contestee of all the facts which the 
evidence tends to prove and all inferences which may logically and rea- 
sonably be drawn therefrom. If the evidence is sufficient if 'unrebutted, 
to sustain the charges of contest, the demurrer must be overruled. 

If testimony be taken near the land under Rule 28, the contestee should 
after entering demurrer submit his evidence (Rule 40). Or, if he so elect, 
may stand on his demurrer. However he should never do this except in 
a clear case, for if his demurrer be overruled no further opportunity of 
submitting evidence will be given him. 

If testimony be taken before the register and receiver, they will forth- 
with rule on the demurrer. If it be sustained, the case will be dismisssed 
subject to right of appeal. Such a decision obviates the necessity for 
the submission of testimony by the contestee as long as it remains un- 



CONTEST PROCEDURE 31 



reversed (Montgomery v. Pfeifer, 6 L. D.. 369, and cases cited). If the 
demurrer be subsequently overruled by the General Land Office or the 
Department, the case will be remanded and the contestee given an op- 
portunity to submit evidence (Lein v. Botton, 13 L. D., 40), whether the 
question raised was one of law or fact (Giles v. Troop, 27 L. D. 62). If 
the demurrer be overruled by the register and receiver, the contestee 
should note an exception to the ruling and then submit evidence. Or he 
may stand on the demurrer without submitting evidence. If ths be done 
and the local officers are sustained on appeal no further opportunity will be 
given him to submit evidence (Snider v. Wright, 16 L. D., 88; Brucker 
v. Buschmann 20 L. D., 557; Rule 40). 

Where evidence taken before an officer near the land appointed under 
Rule 28 is demurred to, the register and receiver will, after considering 
the evidence on behalf of the contestant, pass upon the demurrer before 
considering that submitted by the contestee. If the demurrer be sus- 
tained, decision will be rendered without considering the evidence sub- 
mitted on his behalf (Rule 40). 

When testimony is taken elsewhere than at the local office neither 
party will be allowed to submit further testimony on the day of hearing 
except upon due notice to the opposite party and proper order therefor 
(Dahlquist v. Cotter, 34 L. D , 396). The taking of additional testimony 
before final action rests in the discretion of the register and receiver. 
Ten days' notice of the time and place of taking same is sufficient to 
confer jurisdiction (Piper v. Wyoming, 15 L. D., 93. and cases cited). 

Upon the completion of the evidence, or, if testimony be taken by an 
officer appointed under Rule 28 on the day of hearing the register and 
receiver will render decision and serve a copy thereof (Dougherty v. 
Buck, 16 L. D.. 187) upon the unsuccessful party, his attorney or agent, 
personally or by registered mail, at his address of record. A copy of 
the decision will be sent by ordinary mail to the prevailing party. 

The decision except in default cases, must contain notice to the losing 
party that he will be allowed fifteen days from receipt thereof within 
which to move for a new trial upon the ground of newly discovered evi- 
dence, or, if such motion is not made, thirty days from receipt thereof 
within which to appeal to the Commissioner of the General Land Office. 

NEW TRIAL. 

"RULE 42. The decision of the register and receiver will be vacated ana 
new trial' granted only upon the ground of newly discovered evidence, in accord- 
ance with the practice applicable to new trials in courts of justice: Provided, 
however, That no such application shall be granted except upon showing that 
the substantial rights of the applicant have been injuriously affected. 

No appeal will be allowed from an order granting new trial, but the reg- 
ister and receiver will proceed at the earliest practicable time to re-try the 
case, and will, so far as possible, use the testimony theretofore taken without 
re-examination of same witnesses, confining the taking of testimony to the 
newly discovered evidence." 

"RULE 43. Notice of motion for new trial, setting forth the grounds thereof, 
and accompanied by copies of all papers not already on file to be used in sup- 
port of such motion, shall be served upon the adverse party, and, together with 
proof of service, filed with the register and receiver not more than fifteen days 
after notice of decision; the adverse party shall, within ten days after such 
notice, serve and file affidavits or other papers to be used by him in opposi- 
tion to such motion." 

"RULE 44. Motions for new trial will not be considered or decided in the 
first instance by the Commissioner or the Secretary of the Interior, or other- 
wise than on review of the decision thereof by the register and receiver." 
"RULE 45. If motion for new trial is not made, or if made and not allowed, 
the register and receiver will, at the expiration of the time for appeal, prompt- 
ly forward the same, with the! testimony and all papers in the case, to the 
commissioner, with letter of transmittal, describing the case by its title, nature 
of the contest, and the land involved. 

The local officers will not, after forwarding of decision, as above provided, 
take further action in the case unless so instructed by the commissioner." 



CONTEST PROCEDURE 



The remedy of a party who is not ready for trial is by way of motion 
for continuance (Rule 17, p. 21 et seq.) and not by motion for new trial 
after hearing is had (Bowan v. Kane, 26 L. D , 341). 

New trials are not allowed by registers and receivers upon any other 
ground than that of newly discovered evidence (Rule 42) and then only 
upon motion made within fifteen days after service of decision. 

On motion for new trial based upon the ground of newly discovered 
evidence, it must appear that the movant is not chargeable with 
laches; 'that the evidence is of such character that if introduced and 
unrebutted it would determine the issue between the parties and neces- 
sarily modify the former conclusion (Cunningham v. Sappington, 26 L. D., 
441; Barton v. Howe, 29 L. D., 581). 

The motion must set forth the alleged newly discovered evidence 
(Lujan v. Cordoba, 18 L.D. 72; show that it was unknown at the first trial 
(Guthrie Townsite v. Paine et al., 13 L. D., 562; Long, Jim et al. v. 
Robinson et al., 17 L. D. 348); state when the discovery was made, (Kel- 
ley v. Moran 9 L. D., 581) ; that it could not have been discovered be- 
fore the trial by due diligence— the fact showing diligence must appear 
(Robb et al. v. Howe, 18 L. D., 31; Hartman v. Warren et al. 19 L. D., 
543) ; and that the discovery was acted upon without delay (McKinnis v. 
Oregon, 11 L. D., 618; Halloway's Heirs v. Lewis. 13 L. D , 265). 

The motion must be supported by the affidavits of the party, i. e., the 
contestants or contestee. on whose behalf the motion is made (Hart- 
man v Warren et al., ante) and of the witnesses who will testify to 
the newlv discovered facts, or reasons must be given for the non- 
production of such witnesses' affidavits (McKinnis v. Oregon; Hal- 
loway's ,Heirs v. Lewis, ante). However, where the matters up- 
on which the motion i s based are susceptible of proof by the 
records cf the land department, the affidavit of the movant 
alone is sufficient (Short v. Bowman, 35 L. D., 70). The motion 
cannot be allowed upon the unsupported affidavit of the movant 
(Lujan v. Cordoba, ante) ; nor upon unsworn statements of his neigh- 
bors (Logan v. Smith, 6 L. D., 239; Collier v. Wyland, 10 L. D., 96). 
The affidavit of the party supporting his motion must show that the 
evidence was unknown to him, not merely his counsel; and the affidavit 
of counsel is insufficient without that of the party (Hartman v. War- 
ren et al, ante). 

New trial will not be granted where the newly discovered evidence 
is immaterial (Shields v. McDonald, 18 L. L., 478), cumulative (Tucker 
v. Nelson, 12 L. D., 233), is a matter of record (St. Paul M. & M. Ry. Co. 
v Morrison 4 L D.. 512), tends merely to discredit or impeach a witness 
(Benesh v. Kaleshek, 22 L. D., 530; Bruner v. Mitchell, 25 L. D., 438). 
or relates to a charge laid in the contest appplication on which no evi- 
dence was offered at the hearing (Dougherty v. Dawson 18 L. D., 257). 
Nor where the new evidence is expected from a witness who was exam. 
ined at the first trial (Hartman v. Warren et al., 19 L. D., 543) ; where 
the case was not properly presented (Enstrom v. Hart, 18 L. D., 486); or 
upon offer of additional evidence withheld on the original proceeding 
(Long Jim et al. v. Robinson ejt al., 17 L. D. ; 348). 

A proposition to pay the costs of a new trial, if one should be ordered, 
cannot be considered in aid of the motion (Hall v. Mitchell, 25 L D , 
487). 

Copies of the motion and of the affidavits of the movant and his wit- 
nesses in support thereof must be served upon the adverse party, and 
the original copies, with proof of service, must be filed in the local office 
within fifteen days after service of decision (Rule 43; Warn v. Field 
et al., 6 L. D., 236). These papers should be served in the same manner 



CON n:sr PROCEDURE 33 



as the answer to contest (Rule 13, p. 19). The proof of service must show 
B copy of each paper filed was served. 

The adverse party is allowed ten days from service of the motion 
upon him within which to serve and file affidavits and papers in op- 
position thereto. These papers should be served and proof made thereof 
in the same manner as the motion. 

At at expiration of the time allowed for filing papers in opposition, 
the register and receiver will consider the motion. If it be allowed a 
new trial will be ordered and the parties notified (Rule 15, p, 20). An ap- 
peal will not lie from an allowance of the motion (Par. 2, Rule 42). If 
the motion be denied the party must, in order to protect his rights, file 
notice of appeal from the decision and denial of his motion within fifteen 
days after receipt of notice thereof. 

On expiration of the time for appeal without action having been taken, 
the record will be transmitted to the Commissioner of the General Land 
Office for consideration. 

FINAL PROOF PENDING CONTEST. 

"RULE 46. Where trial of a contest brought against any entry or filing has 
taken place, the entryman may submit final proof and complete the same, with 
the exception of payment of the purchase money or commission, as the case may 
be: such final proof will be retained in the local office, and, should the entry be 
adjudged valid, will, if satisfactory, be accepted upon payment of the purcnase 
money or commissions, and final certificate will issue without further action on 
the the part of the entryman, except the furnishing by him, or in case of his 
death by his legal representatives, of non-alienation affidavit. 

In such cases the party making the proof will at the time of submitting same 
be required to pay the fees for reducing the testimony to writing." 

Final proof may be submitted only after the contest is heard (Fait 
v. Stewart, 21 L. D., 3). If proof be submitted, the entryman must 
stand or fall on the showing made as to the compliance with law 
during the period covered by it (McCall-a v. Acker 26 L. D., 64). 

APPEALS TO COMMISSIONER 

"RULE 47. No appeal from the action or decision of the register and re- 
ceiver will be considered unless notice thereof is served and filed with the local 
officers in the manner and within the time specified in these rules." 

"RULE 48. Notice of appeal from the decision of the register and receiver 
shall be served and filed with such register and receiver within thirty days after 
receipt of notice of decision: Provided, however, That when motion ror new 
trial is presented and denied, notice of such appeal' shall be served within fifteen 
days after receipt of notice of the denial of said motion." 

"RULE 49. No person who has failed to answer the contest affidavit, or, hav" 
ing answered, has failed to appear at the hearing, shall be allowed an appeal 
from the final action or decision of the register and receiver." 

RULE 50. Such notice of appeal must be in writing, and set forth in clear, 
concise language the grounds of the appeal; if such appeal be taken upon the 
ground of insufficiency of the evidence to justify the decision, the particulars or 
such insufficiency must be specifically set forth in the notice, and, if error of law 
is urged as a ground for such appeal, the alleged error must be likewise speci- 
fied. 

Upon failure to serve and file notice of appeal as herein provided the case 
will' be closed." 

"RULE 51. When any party fails to move for a new trial or to appeal from 
the decision of the register and receiver within the time specified, such decision 
shall, as to such party, be final and will not be disturbed except in case of: — 

(a) Fraud or gross irregularity. 

(b) Disagreement in the decision between the register and receiver. 

No case will be remanded for any defect which does not materially affect the 
aggrieved party." 

"RULE 52. All documents received by the local officers must be kept on file 
and the date of filing noted thereon; no papers will, under any circumstances, 
be removed from the files or from the custody of register and xeceiver, t>ut ac- 
cess to the same, under proper rgulations, and so as not to interfere with trans- 
action of public business, will be permitted to the parties or their attorneys." 



34 CONTEST PROCEDURE 



Lack of apace forbids consideration of the subject of appeals except in 
a general way. The reader is referred to L. D. Digest, Vols. 1-30, p. 521, 
et seq., Title Appeals. 

An appeal will not lie from a decision of the register and receiver 
rendered on default (Rule 14, p. 20, et seq.; Rule 49)". On failure to appeal 
the decision of the register and receiver will not b disturbed except 
undr Rule 51, and if the Commissioner affirm the decision of the local 
officers no appetal will lie from his .action (Rule 75; Kearn s v. Baldwin, 
20 L. D., 375; Sielaff v. Richter's Heirs et al.. 20 L, D., 396). 

The notice of appeal must specifically set forth the errors complained 
of; general and indefinite specifications will not be accepted. For in- 
stance, specifications that the decision is contrary to the evidence (Peder- 
son v. Johannessen, 4 L. D. 343) ; contrary to the law and evidence 
(Underhiil v. Berryman, 15 L. D., 566; McNiece v. Gale. 20 L. D., 329); 
contrary to law and facts, is unjust, unreasonable, illogical and biased 
(U. S. v. Hulbert, 12 L. D., 29); contrary to law and practice of, the land 
Department (Schweitzer v. Wolfe, 5 L. D., 158) are insufficient. A good 
example of general and indefinite, and of clear and specific specifications 
is to be found in the case of the Iowa Railroad Land Co.. (9 L. D, 372, 
373). On failure clearly to specify the errors complained of. the ap- 
peal will be dismissed by the Commissioner (Wilkinson v. Curtin, 21 
L. D., 553; Haggberg et al. v. Mahew, 24 L D., 489), and an appeal 
from his action will not be allowed (Ream v. Larson 14 L. D., 176). 

"Rule 80 specifically refers to Rule 50 and provides for the time al- 
lowed for serving and filing briefs and specification of error" (Instruc- 
tions, August 15, 1911, R. & R., Dickinson 06807). 

Notice of appeal (or appeal and argument) with evidence of service 
thereof upon the adverse party must be filed in the local office within 
thirty days after receipt of decision; or. if a motion for a new trial be 
denied, within fifteen days after receipt of nDtice of such denial. 
If notice of appeal is not served on the appellee, the Commissioner is 
without authority to reverse the decision of the register and receiver 
except under Rule 51 (Newton v. Powell, 18 L. D., 594) and if he affirms 
their decision, no appeal will lie from his action (Henning et al. v. Mor- 
ton et al., 18 L. D., 153; Wilkinson, v. Curtin, 21 L. D., 553). 

If notice of appeal be served and filed within the time specified the 
appellant is allowed twenty days after service thereof upon the appel- 
lee within which to serve and file appeal and argument; the appellee 
is allowed twenty days after service of appeal within which to serve 
and file reply; and the appellant ten days after service of reply within 
which to serve and file response. 

Notice of appeal, appeal and argument, reply and response should be 
served personally or by registered mail in the same manner as the 
answer to contest (Rule 13, p. 19). Where service is by mail the day of 
service is the day on which the letter was mailed, as shown by the post- 
master's receipt accompanying proof of service. The time for service 
is computed under Rule 94. No additional time is allowed where 
service is made by mail, as was tie case under the rules of oractice 
formerly in effect (Instructions of August 15, 1911, ante), bat if either 
party be represented by counsel not having offices in the city of Wash- 
ington (usually the case on appeal from decision of registers and receiv- 
ers) ten days in addition to each of the periods specified are -allowed 
within which to serve and file the respective papers. 

In either of the papers, i. e., notice of appeal, appeal and argument, 
reply, or response are not served and filed within the time allowed; on 
the day next following the last day on which this may be done the rec- 
ord will be transmitted to the Commissioner of the General Land Of- 
fice for action. 



CONTEST PROCEDURE 



COSTS AND APPORTIONMENT THEREOF. 

"RULE 53. A contestant claiming preference right of entry under the second 
section of the act of May 14, 1880 (21 Stat., 140), must pay the costs of con- 
test: in other cases each party must pay the cost of taking the direct examina- 
tion of his own witnesses and the cross examination on his behalf of other 
witnesses. The cost of noting motions, objections and exceptions must be 
raid by the party on whose behalf the same are made." 

"RULE 54. Accumulation of excessive costs will not be permitted. When the 
officer before whom testimony is being taken shall rule that a course of exam- 
ination is irrelevant, the same will not proceed except at the sole cost of the 
party insisting thereon and upon his depositing the aomunt reasonably sufficient 
to pay therefor." 

"RULE; 55. Where a party contesting a claim shall by virtue of actual set- 
tlement and improvement establish his v right of entry of the land in contest 
under the pre-emption, homestead or desert-land laws by virtue of settlement 
and improvement without reference to the Act of May 14, 1880, the costs of con- 
test will be imposed as prescribed in the second clause of Rule 53." 

"RULE 56. The onlj^ cost of contest chargeable by registers and receivers are 
the legal fees for reducing testimony to writing. No other contest fees or costs 
will be allowed to or charged by those officers, directly or indirectly." 

''RULE 57. Registers and receivers may at any time require either party to 
give security for costs, including expense of taking and transcribing testi- 
mony." 

"RULE 58. Upon filing of the transcript of the testimony in the local office, 
any excess in the sum deposited as security for costs of transcribing testimony 
will be returned to the parties depositing the same." 

"RULE 59. When hearings are ordered on behalf of the Government, all costs 
incurred on its behalf will be paid from the proper appropriation, and when, 
upon the discovery of reasons for suspension in the usual course of examination 
of entries and contest, hearings are ordered between contending parties, the 
costs wDl be paid as required by Rule 53." 

"RULE 60. The cost provided for by the preceding rules will be collected by 
the receiver when the parties are brought before him in obedience to the order 
for hearing." 

"RULE 61. The receiver will append to the report in each case a statement 
of costs, the amount actually paid by each of the parties, and the disposition 
thereof." 

When a case Is called for the taking of testimony whether it be at the 
local office, before an officer appointed under Rule 28, or on commission 
issued to take disposition, the party to be taxed with the costs will be 
required to deposit a sum sufficient to cover them. Further deposits 
may be required from time to time as the case proceeds. 

When a party contests an entry for the purpose of securing a prefer- 
ence right and the entry is one on the cancellation of which such right 
is awarded, he must pay all costs except those incurred in connection 
with the taking of depositions on oral examination on beha r of the 
contestee under the Act of January 31, 1903 (Delfelder v. Slattery, 34 
L. D., 398). or where the contestee continues a course of examination 
under Rule 54 which is held to be irrelevant. 

In all other cases each party must pay his own costs; that is, for the 
swearing of his own witnesses; for their direct examination; for the 
cross-examination of other witnesses; and for the noting of motions, 
objections, and exceptions made on his behalf. 

The fees for swearing witnesses and reducing testimony to writing 
are those allowed in the local courts. Wnen testimony iiy taken before 
the register and receiver, the only fee charged is for the transcribing or 
testimony; no charge is made for the swearing of witnesses. 

"RULE 62. All notices and other papers not required to be served by the reg- 
ister and receiver must be prepared and srved by the respective parties." 

The only notice required to be served by the local officers is the no~ 
tice of hearing (Appendix M). All other notices must be prepared by 
the parties. When filing the application, notices for personal service 
(Appendix R) must be prepared and submitted for signature; and when 



36 CONTEST PROCEDURE 



applying for an order to serve notice by publication, notices for publi- 
cation (Appendix G) must be prepared and submitted with the affidavit 
(Appendix F.) Subpoenas (Appendix T) must be prepared by tie party 
desiring them and submitted to the register and receiver or officer tak- 
ing testimony for signature. 

"RULE 63. The register and receiver will require proper provision to be made 
for such notices not specifically provided for in these rules as may become nec- 
essary in the usual progress of the case to final decision." 

There is seldom any necessity for notices not provided for by the 

rules. 

APPEAL FROM DECISION REJECTING APPLICATION TO ENTER 

PUBLIC LANDS. 

"RULE 64. To facilitate appeals from the action of local officers relative 
to applications to file, enter, or locate upon the public lands, the register and 
receiver will: — 

(a) Indorse upon every rejected application the date of presentation and 
reasons for rejection. 

(b) Promptly- advise the parts' in interest of their action and of his right 
of appeal. 

(c) Xote upon their records a memorandum of the transaction." 

Applications to make an entry, filing, location or selection are usually 
rejected upon one or more cf the following grounds : 

1. Where the land is withdrawn from all forms of entry; 

2. Where it is not subject to the form of entry, filing, selection or location 
sought to be made; 

3. For disqualification of the party (or parties) seeking to make the entrA*, 
filing, selection or location; 

4. Because of conflict with an existing entry; that is, where the 3and em- 
braced in the application, or some part of it, is covered by an entry intact 
of record. 

If the application be rejected, a notation describing the tract applied 
for and giving the serial number of the application will be made m tne 
Tract Book. Entry will be made in the Serial Register slowing tne 
name and address of the applicant, description of the land involved, date 
of filing of application, reason for its rejection and the date thereof. 
Notice of rejection (Appendix E) will be sent to tlie. applicant at the 
address given in his application. 

"RULE 65. The party aggrieved will be allowed 30 days from the receipt cf 
notice in which to file notice of appeal in the local land office. The notice of 
appeal, when filed, will be forwarded to the General Land Office with full re- 
port upon the case, which should recite all' the facts and proceedings had, and 
must embrace the following particulars: — 

(a) The original application with reasons for the rejection thereof. 

(b) Description of the tract involved and statement of its status, as shown 
by the records of the local office. 

(c) Reference to all entries, filings, annotations, memorandum, and cor- 
respondence shown by the record relating to said tract and to the proceedings 
had." 

If an appeal be taken within the time allowed (p. 33, et seq) it will, 
together with the rejected application and report giving the status 
of the land involved as shown by the records of the local office, Imme- 
diately be transmitted to the G-eneral Land Office for action. If no ap- 
peal be taken, on expiration of the time allowed therefor, the case will 
be closed and the papers relating thereto transmittd to th Gneral Land 
Office with the monthlv returns. 



CONTEST PROCEDURE 



PROCEEDINGS BEFORE SURVEYORS GENERAL. 

••RULE 66. The proceedings in hearings and contests before surveyors 
general shall, as to notices, depositions, and other matters, be governed as 
nearly as may be by the rules prescribed for proceedings before registers and 
receivers, unless otherwise provided by law." 

PROCEEDINGS BEFORE THE COMMISSIONER OF THE GENERAL 

LAND OFFICE AND SECRETARY OF THE INTRIOR. 

EXAMINATION AND ARGUMENT. 

"RULE 67. The commissioner will cause notice to be given to each party 
in interest whose address is known of any order "or decision affecting the mer- 
its of the case or the regular order of proceedings therein." 

'TUJLE 68. No additional evidence will be admitted or considered by the 
commissioner unless offered under stipulation of the parties or in support of 
a mineral application or protest; provided, however, that the commissioner 
may order further investigation made or evidence submitted upon particular 
matters to be by him specifically designated. 

Affidavits or other ex parte statements filed in the office of the commis- 
sioner will not be considered in finally determining anj^ controversy upon the 
merits." 

"RUXE 69. After receipt of the record by the commissioner thirty days will 
be allowed to expire before any action is taken thereon, unless, in the judg- 
ment of the commissioner, public policy or private necessity shall require 
summary action, in which event he will proceed at his discretion, first notify- 
ing the attorneys of record of his intention so to do; provided, that where no 
appeal has been filed the case may be immediately considered and disposed of." 

"RULE 70. If brief is not filed before a case is reached in its order for ex- 
amination, the argument will be considered closed, and no further argument 
or motion of any kind will be entertained, except upon application and upon 
good cause appearing to the commissioner therefor." 

"RULE 71. In the discretion of the commissioner, oral' arguent may be 
presented, at a time to be fixed by him and upon notice to opposing counsel, 
which notice shall specify the time for such argument and the specific matter 
to be discussed, except as herein provided, oral hearings or suggestions will 
not be allowed." 

In default oases and in cases where no appeal has been taken from 
the decision of the register and receiver, the record will be considered and 
decision rendered as soon as the case can be reached in due course of 
business. If an appeal (has been taken, the case will not b considered 
until thirty days 'have expired after the reception of the record at the 
General Land Office, except as provided by Rule 69. 

Ordinarily ia case is considered solely on the record transmitted from 
the local office, but oral argument may be allowed under certain cir- 
cumstances under the provision of Rule 71. 

As soon as the commissioner thas rendered decision, copies thereof 
will be transmitted to the register and receiver of the local land office 
for service upon the parties. A copy of the decision will be served upon 
the party adversely affected personally or by registered mail in the same 
manner as was the decision of the local officers, and upon the prevail- 
ing party by ordinary mail (p. 31, ante). 

REHEARING. 

"RULE 72. No motion for rehearing of any decision rendered by the Com- 
missioner of the General Land Office will be allowed." 

MOTIONS. 

"RULE 73. No motion shall' be entertained or considered in any case after 
the record has been transmitted to a reviewing officer. 

In ex parte cases, where the entryman has been allowed by the commissioner 
to furnish additional evidence or to show cause, or, in the alternative, to ap- 
peal, both the evidence or showing and the appeal are filed, the commissioner 
shall pass upon the evidence or showing submitted, and if found sufficient, 
note the appeal as closed. If such evidence or showing be found insufficient, 
the appeal will' be forwarded to the Secretary as in other cases." 



yg CONTEST PROCEDURE 



APPEAL FROM THE COMMISSIONER TO THE SECRETARY. 

"PULE 74 Except as herein otherwise provided, an appeal may be taken 
to the Secretarv of the Interior from the final decision of the commissioner 
in any proceeding relating to the disposal of the public lands and private 

" "RULE 75. No appeal shall be had from the action of the commissioner 
affirming the decision of the local officers in any case where the party ad- 
versely affected shall have failed to appeal from the decision of said local 
officers." . . _ . . 

"RULE 76. Notice of appeal from the commissioner s decision must be 
served upon the adverse i:arty and filed in the office of the register and 
receiver or in the General Land Office within thirty days' from the date of 
service of notice of such decision." 

'RULE 77. When the commissioner considers an appeal defective he will 
notify the party thereof; and if the defect be not cured within 15 days from the 
date of receipt of such notice, the appeal may be dismissed and the case closed." 

'RULE 78. In proceedings before the commissioner in which he shall 
decide that a party has no right of appeal to the secretary, such party may 
apply to the secretary for an order directing the commissioner to certify such 
proceedings to the secretary and suspend action until the secretary shall pass 
upcn the same; such application shall be in writing, under oath, and fully and 
specifically set forth the grounds upon which the same is made." 

"RULE 79. When the commissioner shall decide against the right of appeal 
he will suspend action on the case for twenty days from service of notice of 
such decision to enable the party against whom the decision is rendered to 
apply to the secretary for an order certifying the record as hereinabove pro- 
vided." 

"RULE 80. The appellant will be allowed twenty- days after service of 
notice of appeal within which to serve and file brief and specification of error, 
as provided by Rule 50, the adverse party 20 days after service of such within 
which to serve and file reply thereto; appellant will be allowed 10 days after 
service of such reply within which to serve and file response: Provided, how- 
ever, That if either party is not represented by counsel having offices in the 
City of Washington, 10 days in addition to each period above specified will 
be allowed within which to serve and file the respective briefs 

No arguments otherwise than above provided shall be made or filed with- 
out permission of the secretary or commissioner granted upon notice to the 
adverse party." 

"RULE 81. Examination of cases will' be facilitated by filing arguments in 
printed form." 

The decision of the commissioner affirming the action of the register 
and receiver is final if no appeal was taken from their decision (Rule 
75); or where notice of appeal from such decision was not served upon 
the adverse party as required by Rule 48 (Kenning et ai v. Morton et aL, 
18 L. D., 153; Newton v. Powell, 18 L. D., 594); or if an appeal from such 
decision be dismissed for insufficient specification or errors (Wilkinson 
v. Curtin, 21 L. D., 553; Haggberg et al. v. Mayhew, 24 L. D., 489; Ream 
v. Larson, 14 L. D., 176; Gardner v. Haggerty, 18 L. D., 91). 

For contents of notice of appeal and manner of drawing specifications 
of error see p. 34. Specifications of error on appeal to the Depart- 
ment are not limited to the points raised by the appeal from the local 
office (Kendrick v. Doyle, 12 L. D, 67; and see Addis v. Blower, 12 L. 
D.. 476). 

Notice of appeal (or appeal and argument) must be esrved upon tne 
adverse party (Van Dyke v. Lehrbass, 24 L. D., 322) and filed with the 
register and receiver of the local office or in the General Land Office 
within thirty days after receipt of decision. 

If no action be taken, or expiration of time ailowed for serving and 
filing notice of appeal, report with evidence of service of tae decision 
will be transmitted to the Commissioner, who will close the case. 

If notice of appeal be served, the appellant is allowed 20 days thereaf- 
ter in which to serve >and fiie appeal and argument; the appellee 20 
days after service of appeal and argument witain which to serve and 
file reply; and the appellant 10 days after service of reply within which 
to serve and file response. No ther briefs or arguments are allowed ex- 



CONTEST PROCEDURE 39 

cept upon permission cf the Commissioner or Secretary granted upon 
notice to the adverse party. If either party be represented by counsel 
nor having offices in the city of Washington, 10 days in addiion to each 
of the periods specified are allowed. For manner of service of the re- 
spective papers and method of computing time see p. 34, ante. 

If notice of appeal, appeal and argument reply or response be not 
served and filed with the time allowed on the day next succeeding thp 
last day on which this may be done, report with evidence of service 
of the decision and all papers filed will be transmitted to the General 
Land Office. 

If the Commissioner decide that no right of appeal exists, the party 
affected thereby is allowed twenty days after receipt of such decision 
within which to apply to the Secretary for a writ of certiorari. Such an 
application must be under oath and specifically set forth the grounds 
upon which it is made. If allowed, action will be suspended until the 
Secretary shall have passed upon the matter. If the writ is not applied 
for within the time allowed, the case will be closed. 

If the right of appeal exists but the Commissioner considers the ap- 
peal defective, fifteen days from notice will be allowed within which to 
cure the defect. If this be not done within that time the appeal will be 
dismissed and the case closed. 

Right off appeal existing, and no defect appearing, the record will be 
transmitted to the Seertary for considration. 

ORAL ARGUMENT BEFORE THE SECRETARY. 

"RULE 82. Oral argument of any case on appeal to the Secretary of the 
Interior will be allowed, in the .discretion of the Secretary, at a time fixed 
by him and upon written notice to the adverse party." 

This rule was amended by circular of November 6, 1911 (Effective 
December 15, 1911) to read as follows: 

"RULE 82. Oral argument in any case pending before the Secretary of 
the Interior will be allowed, on motion, in the discretion of the Secretary, at 
a time to be fixed by him, after notice to the parties. The counsel for each 
party will' be allowed only one-half an hour unless an extension of the time 
is ordered before the argument begins." 

The secretary will render decision and transmit copies thereof to the 
register and receiver through the General Land Office for service. No- 
tice of decision will be served in the same mamnr us was that of the 
Commissioner and the local officers (p. 31, ante). Within thirty days 
after service of decision the party adversely affected thereby may move 
for a rehearing (Rule 83). If no such motion be made, on expiration of 
the time allowed report with evidence of service of the decision will be 
transmitted to the Commissioner, who will close the case. 

REHEARING OF SECRETARY'S DECISION. 

"RULE 83. Motion for rehearing of the decision of the secretary must, 
together with evidence of service thereof and all papers used in connection 
therewith, be in writing and filed in the General Land Office or in the local 
land office, for transmittal through the "General Land Office to the secretary 
within 30 days after service of notice of such decision. A motion so filed 
will act as a supersedeas until further action is taken by the secretary. 

Such motion must state concisely and specifically the grounds upon which 
such rehearing is asked and must be accompanied by argument in support 
thereof. No matters other than these specified will be considered. 

The adverse party will be allowed 15 days in which to serve and file reply 
to the motion for rehearing; and immediately upon the expiration of the periods 
allowed herein, the Commissioner of the General Land Office shall transmit .the 
entire, record to the secreatry, who will consider the same as early as practic- 
able." 



40 CONTEST PROCEDURE 



This rule was amended by circular of November 6, 1911, (Effective 
December 15, 1911) to read as follows: 

"RULE 83 \. motion for rehearing of a cause bj* the Secretary of the 
Interior together with all papers used in connection therewith, must be in 
writing' and must, together with evidence of service thereof on the adverse 
oartv be filed in the General Land Office or in the local land office, for trans- 
mittal through the General Land Office to the Secretary, within 30 days after 
service of notice of the decision in said cause. A motion so filed will act as 
a supersedeas until further action is taken by the Secretary. 

Such motion must state concisely and specifically the grounds upon which 
such rehearing is asked and may be accompanied by written argument in sup- 
port thereof. Xo matters other than those specified will be considered. 

The adverse party will be allowed 15 da3's after the service of the motion 
upon him in which to serve and file reply to the motion for rehearing; and 
immediately upon expiration of the periods allowed herein, the Commissioner 
of the General' Land Office shall transmit the entire record to the Secretary 
who will consider the same as early as practicable. 

Xo oral argument will be allowed on any such motion, and this rule will 
be strictly adhered to. If the motion be granted, the Secretary will at once 
proceed to dispose of the case, or, in his discretion, if the motion, or the reply 
thereto, has been accompanied by a request for oral argument in the event 
of its being granted, will set the cause down for oral argument. In any case, 
however, if the motion be granted, the Secretary may set the cause down 
for oral argument." 

This rule was further amended by circular of November 16, 1911, (ef- 
fective December 15, 1911) to read as follows: 

"Rule 83. A motion for rehearing of a cause by the Secretary of the In- 
terior, together with all papers used in connection therewith, must be in writ- 
ing, and must, together with evidence of service thereof on the adverse party, 
be filed with the Secretary of the Interior within 30 days after service of the 
decision in said cause. 

Said motion must state concisely and specifically the grounds upon which 
such rehearing is asked and may be accomplished by written argument in sup- 
port thereof. Xo matters other than those specified will be considered. 

The adverse party will be allowed fifteen days after the service of the motion 
upon him in which to serve and file with the Secretary of the Interior a reply 
to the motion. 

In case no such motion be filed within the period above prescribed the 
record will at once be transmitted to the Commissioner of the General Land 
Office for execution of the judgment of the Secretary. Like action will be taken 
immediately after the judgment of the Secretary on any motion for rehearing 

Xo oral argument will be allowed on any such motion, and this rul'e will 
be strictly adhered to. If the motion be granted, the secretary will at once 
proceed to dispose of the case, or, in his discretion, if the motion, or the 
reply thereto, has been accompanied by a request for oral argument in the 
event of its being granted, will . set the cause down for oral argument. In 
any case, however, if the motion be granted, the Secretary may set the cause 
down for oral argument. 

The remedy of a party who is not ready for trial is by way or 
motion for continuance (Rule 17, p. 21, et seq.) and not bv motion for re- 
hearing (Bowman v. Kane, 26 L. D., 341). 

Matters arising subsequently to the initiation of a contest or pending 
an appeal from the decision of the local officers do not furnisa proper 
grounds for a rehearing but should be presented in a new and inde- 
pendent proceeding (Golden v. Cole's Heirs. 25 L. D., 155; Kenny et al. 
v. Johnson et al, 25 L. D , 394; Cummingham v. Sappington, 27 L. D.. 
73). Xew matter arising after the initilation of a. contest and prior to 
hearing is proper subject for amendment (Seeds et al. v. Jones 18. L. D, 
583). 

This rule (Rule 83) will be administered as nearly as possible in ac- 
cordance with the rules governing rehearings in courts of justice, and ob- 
servance of its provisions will be insisted upon." 

"Broadly stated, a rehearing is a new hearing in a matter once de- 
cided, upon re-examination or re-argument. It may involve correction of 
erroneous statement of facts, erroneous conclusions of law. error in 
the judgment en the facts found and the law declared or it may Involve 



CONTEST PROCEDURE 41 



the consequence of a new trial upooj newly discovered evidence; but in 
any event, except in cases provided for by statute, or by rules of courts, 
rehearings are not granted as a matter of right, the allowance thereof 
resting wholly in the sound discretion of the court." (Ex Parte Schreiner, 
40 L. D., 89). 

"Where motion for rehearing is to be based upon the ground of newly 
discovered evidence, see ante p. 31, et seq. 

Rehetiring will be allowed for the purpose of showing that collusion 
between the entryman and the contestant's attorney defeated the hear- 
ing on its merits (Nichols v. Benoit, 2 L. D., 583; Holliday v. Harlan, 
7 L. D , 262), or on a corroborated charge of fraud, though it be irregu- 
larly made (Ex Parte Moses, 3 L. D., 57). It may be allowed on report 
of the local officers based on inspection of the land involved (Jeardoe v. 
Shannon, 8 L. D., 38); where the applicant acting in good faith, and be- 
lieving that the officer before whom the testimony is to be taken is 
prejudiced and interested in the result of the contest, for that reason 
does not submit his testimony before such officer (Warmer v. Finnerty, 
10 L. D., 433); or where the contestant relying on the assurance of the 
local officer, before whom the case was heard, that evidence sufficient 
to warilant cancellation had been introduced, did not submit further testi- 
mony, and it is found on review of the proceedings below that the evi- 
dence in the case does not justify cancellation (Stram v. Hines. 25 L. 
D., 464). It will not be granted where the parties interested had full 
opportunity to be heard on the question and no new matters of Haw or 
fact are presented (Case of the Riancho Las Virgenes, 2 L. D , 345) ; on 
allegations that the evidence was not properly transcribed where such 
fact might have been discovered while the case was in the local office 
(Mehler v. McBride, 4 L. D., 184) ; where the applicant, relying upon 
technical grounds,, did not submit testimony when the case icame up for 
trial (Dixon v. Sutherland, 7 L. D., 312; Yarneau v. Graham, 16 L. D., 
348) ; because of incompetency of applicant's attorney in the original 
proceedings (McKinnis v. Oregon, 11 L. D., 618; Tucker v. Nelson, 12 
L. D., 233) ; where the contestee rested his case upon overruling of his 
demurrer to the evidence and declined to sumit tstimony (Bruckr v. 
BuscliTvann, 20 L. D., 557; or upon the plea of poverty as an excuse 
for faiiure to submit evidence at the hearing (Patrick v. Davidson, 17 
L D., 116). 

^The motion must specifically state the grounds on which it is based; 
no other matters will be considered, acid be accompanied by argument 
in support thereof (ExParte Schreiner, 40 L. D, 87). It should in any 
case be supported by affidavit, (and when based upon the ground of 
newly discovered evidence must be supported (ante, p. 32). 

The motion, all papers in connection therewith, and argument in sup- 
port thereof, must be served upon the adverse party and, together with 
proof of service be filed with the register and reciever or in the Gen- 
eral Land Office within 30 days after receipt of decision. If duly served 
and filed the motion will stay all proceedings until passed upon by the 
Secretary. The adverse party is allowed 15 days after service of the 
motion within which to serve and file reply thereto. Service of the 
motion and reply should be miade in the same manner as the answer 
to contest (Rule 13, p. 19). 

On filing of reply to the motion, or upon expiration of the time allowed 
therefor, report evidence of service of decision and all papers filed will 
be forwarded to the General Land Office for transmission to the Sec- 
retary. On his decision the case will be closed 



42 



CONTEST PROCEDURE 



MOTION FOR REVIEW AND RE-REVIEW. 

"RULE 84. Motions for review and rereview are hereby abolished." 
SUPERVISORY POWER OF SECRETARY. 

"-rttt-p Rz, Motion for the exercise of supervisory power will be considered 
onlv when accompanied by positive showing of extraordinary emergency or 
pvieencv demanding the exercise of such authority. 

in proceedings before the Secretary of the Interior the same rules shall 
govern in so far as applicable, as are provided for proceedings before the 
Commissioner of the General Land Office." _ 

"RULE 86 No rule here prescribed shall be construed to deprive the 
Secretary of the Interior of any direct or supervisory power conferred upon 
him by law." 

ATTORNEYS. 

"RULF 87 Every attorney before practicing before the Department of the 
Interior must first file the oath prescribed by section 3478 of the Revised 

" "RULE 88 In all cases where any party is represented by attorney such 
attorney win be recognized as fully controlling the same on behalf of his client, 
and service of any notice or other paper relating to such proceedings upon such 
attorney will be deemed notice to the party in interest. 

Where a party is represented by more than one attorney service of notice 
or other papers upon one of said attorneys shall be sufficient." 

"RULE 89. No person hereafter appearing as a party or attorney in any 
case shall be entitled to notice of any proceeding therein who does not, at 
the time of appearance, file in the office in which the case is pending a state- 
ment showing his name and postoffice address and the name and postoffice 
address of the party whom he represents." 

"RULE 90. Any attorney in good standing employed, and whose appear- 
ance is regularly entered in any case pending before the department, will 
be allowed full opportunity to consult the records therein, together with ab- 
stracts, field notes, tract books, and correspondentce which is not deemed 
privileged and confidential." 

"RULE 91. Verbal or other inquiries by parties or counsel directed to any 
employee of the department, except the commissioner, assistant commissioner, 
or chief of division of the General Land Office, or the Secretary and Assistant 
Secretary, the Assistant Attorney General', or the first assistant attorney in 
the offices of the Secretary of the Interior, or with the consent of one or more 
of said officers, is expressly forbidden." 

"RULE 92. Abuse of the privilege of examining records of the department 
or violation of the foregoing rule by any attorney will be treated as sufficient 
cause for institution of disbarment proceedings." 

Attorneys and agents will not be recognized until admitted to practice 
under the departmental rules and regulations (ExParte Steen, 22 L. D., 
434; Ex Parte Frost et ial.„ 24 L. D., 525). For rules and regulations 
governing recognition of agents and attorneys before district Hand of- 
fices see 35 L. D., 534. 

An attorney at law who desires to be admitted to practice must file 
a certificate of the clerk of the United States, State, or Territorial 
court, duly ^authenticated under the seal of the court that he is an attor- 
ney in gooid standing. A person not an attorney at law who desires to 
be admitted must sfile a certificate from a judge of a United States, 
State, or Territorial court, duly (authenticated under the seal of the court, 
that such person is of good moral character and in good repute, pos- 
sessed of the necessary qualifications to enable him to render claimants 
valuable service, and otherwise competent to assist ithem in the presen- 
tation of their claims. All persons before being admitted to practice 
must take the oath prescribed by Sec. 1757, R. S. U. S. (Sec. 3478), Which 
is as follows: 



CONTEST PROCEDURE 



I do solemnly swear (or 

affirm) that I will support and defend the Constitution of the United 
States against all enemies, foreign and domestic, that 1 rrill hear true 
faith and allegiance to the same; that I take this obligation freely with- 
out any mental reservation or purpose of evQsioa; and that I will well 
and faithfully discharge the duties of the office on which I am about to 
enter. So help me God. 

This oath may be taken before any justice of the peace, notlary pub- 
lic or other person who is legally authorized to administer an oath in 
the state or district where the same may be [administered (Sec. 3479, 
R. S. U. S). 

The applicant must address a letter to the register arid recr.ever, in- 
erasing the .certificate and oath required, in which letter his full name 
and postoffice address must be given. He must state whether he has 
ever been recognized as attorney or agent before the Department of 
the Interior or any bureau thereof, and if so, whther he has ever been 
suspnded or disbarred from practice He must a'so state whether he 
holds any office o'f trust or profit under the orovernment of the United 
States. 

If the application be allowed the applicant will be advised of his ad- 
mi'ssion and report made to tae Commissioner, who will thereafter rec- 
ognize him in cases before the General Land Office. 

At the same time application is presented to- the local officers,, a simi- 
lar application should be transmitted direct to the Secretary of the 
Interior. 

An attorney or agent representing a party must file authority (Appen- 
dix C) or power of attorney (Appendix D) showing his name and post- 
office address and the name and postoffice address of the party whom he 
represents. On failure to do this he will not be recognized in the case 
(Rule 89; Broadbrooks v. Kyle, 28 L. D.. 8). 

An attorney or agent may be disbarred for misconduct (Sec 5, Act 
of July 24, 1884, 23 Stat.. 101; Par. 10, Regulatioas Governing Recogni- 
tion of Agents and Attorneys 35 L. D., 536). 

SERVICE OF NOTICES. 

"RULE 93. (There is no Ru'e No. 93). 

"RULE 94. Fifteen days, exclusive of the day of mailing, will be allowed 
for transmission of notices or other papers by mail from the General' Land 
Office, except in case of notice of resident attorneys, in which case one day 
will be allowed. 

In computing time for service under these rules of practice the first day 
shall be excluded and the last day included; provided, however, that where the 
last day falls on Sunday or a legal holiday, such time shall include the next 
following business day." 

"RULE 95. Notice of all motions and proceedings before the Commissioner 
or Secretary shall be served upon parties or counsel personally or by registered 
mail, and no motion will' be entertained except on proof of service of notice 
thereof." 

"RULE 96. Ex parte proceedings and proceedings in which the adverse party 
does not appear will, as to notice of decision, time for appeal, and filing of 
exceptions and arguments, be governed by the rules prescribed in other cases, 
so far as the same are applicable. In such cases the commissioner or Secre- 
tary may, pursuant to application and upon good cause being shown therefor, 
permit additional evidence to be presented for the purpose of curing defects 
in the proofs of record." 

INTERVENTION. 

"RULE 97. No person shall be allowed to intervene in any case except upon 
application therefor, under oath, showing his interest therein. 

These Rules of Practice will be effective on and after February 1, 1911." 
Approved by the Secretary, December 9, 1910. 



44 CONTEST PROCEDURE 



INTERVENTION BY TRANSFEREE OR ENCUMBRANCER. 

Tiie entryman all transferees or encumbrancers of record; or, if the 
entryman be dead, all heirs and the executor or administrator, if one 
has been appointed, will have been joined as parties in interest and 
served with notice of contest An application for intervention is, 
therefore, seldom necessary. However, if any person in interest (not 
of record) has not been made a. party to the proceeding he may, upon 
disclosing his interest under oath, be allowed to intervene at any time 
prior to the final adjudication of the Case (Ex Parte Felton, 20 L. D., 
116). In order to protect themselves transferees and encumbrancers 
should file notice of their interest and furnish satisfactory evidence 
thereof, notice of all proceedings effecting the entry, contest or ex parte, 
will then be given them (Ex Parte Babbitt, 35 L. D.,' 387). 

INTERVENTION BY DESERTED WIFE OF ENTRYMAN. 

If an entiTman deserts his wife and abandons the land covered by 
his entry, his wife has the exclusive right to contest the entry if she has 
continued to reside on the land (Par. 8, "Suggestions to Homesteaders," 
39 L. D., 235). 

INTERVENTION BY JUNIOR CONTESTANT. 

If a junior contest, i. e., one initiated after the first and before 
it is disposed of, be filed it will be held in abeyance pending the disposi- 
tion of the former unless in addition to charges sufficient, if true, to war- 
rant cancellation of the entry, it be alleged that the first contest is 
speculative or brought in collusion with the entryman and application 
is made to intervene at the hearing. The alleged speculative or collusive 
character of the first or senior contest must be clearly set forth. 

If the junior contest and application for intervention is filed before the 
hearing en the senior case it may be allowed; if presented after the 
hearing it will be held in abeyance (Par. 6, Instructions, 39 L. D., 218). 
When allowed, the junior contestant must serve notice of intervention 
on the senior contestant and the entryman. At the hearing he must 
prove his charges against both parties in order to secure a preference 
right. (Par. 4, Instructions, ante; Fain v. Strunk, 39 L. D., 340)7 

NOTICE OF CANCELLATION AND PREFERENCE RIGHT. 

When a contest against an entry on the cancellation of which prefer- 
ence right is awarded has been prosecuted to a final determination in 
favor of the contestant the entry will be canceled and notice of prefer- 
ence right served upon him personally or by registered mail at his ad- 
dress of record (Clause H, Rule 2; Saugstad v. Fay, 39 L. D., 160). Ser- 
vice must be made upon the contestant, not his attorney, as was for- 
merly the practice. 

The contestant, or his heirs, if qualified (Becker v. Bjerke 36 L D. 
26; Haggman v. Klammer, 36 L. D., 168) are allowed thirty days exclu- 
sive of the day of service (Finley v. Ness. 38 L. D., 394) within which 
to make application for the land. The right is personal and cannot be 
assigned or waived in favor of another (Sohelling v. Fuller, 32 L. D 466) 
It is not a vested right, but merely a preferred right as against ' every 
one except the United States and if, after cancellation but prior to the 
exercise of it. the land is withdrawn from entry the right is defeated 
(Ex Parte Cameron, 37 L. D., 450). 



CONTEST PROCEDURE 45 



RELINQUISHMENT PENDING CONTEST. 

Where a sufficient contest has been filed against an entry, but notice 
has not issued thereon, or, if issued there is no evidence of service 
upon the contested, and the entry is relinquished, a rebuttable presump- 
tion arises that the contest induced the relinquishment. The contestant 
will be notified of his preference right and pending the exercise thereof 
all other applications will be held in suspension. If the contestant 
makes application for the land and there be no intervening applicant, 
bis entry will be allowed. If an intermediate application lias been filed 
the applicant will be notified of the right claimed by the contestant and 
that it will be necessary for him to show, if he so desires, that the re- 
linquishment was not the result of the contest. Twenty days from re- 
ceipt of notice are allowed him within which to apply for a hearing 
to determine that fact. On default of application for a hearing, his 
application to make entry will be rejected and that of the contestant 
allowed. If a hearing is ordered, thirty days' notice of the time and 
place thereof will be given all parties in interest. At the hearing the 
intervening applicant must prove that the relinquishment was not the 
result of the contest. In rebuttal it will be competent for the con- 
testant to show that the former entryman or seme one in the privity with 
him in the sale or purchase of the relinquishment had knowledge of 
the contest. The application of the party prevailing will be allowed. 

Where it appears of record that notice of contest was served upon 
the contestee it wiQ be conclusively presumed as a matter of law 
that the contest induced the relinquishment, and preference right given 
accordingly. (Instructions, 39 L. D., 217). 

If the contest be against an entry on the cancellation of which pref- 
erence right as not awarded, the contestant will be notified of the closing 
of the case and cancellation of the entry by ordinary mail. In such 
case the contestant should have settled upon the land prior to bringing 
contest; then on cancellation of the entry he will be entitled to a prior 
right because of such settlement. 

ADVERSE PROCEEDINGS BY THE GOVERNMENT. 
("Government Contests.") 

Proceedings looking to the cancellation or rejection of an entry or 
claim for invalidity in its inception not apparent of record, or for failure 
on the part of the entryman after entry to comply with law, are initiated 
and prosecuted by the Special Service Division of the General Land Of- 
fice, which is in charge of the Chief of Field Service." 

The Public-Land states are divided into field divisions, e)ach of which 
is in charge of a Chief of Field Division subordinate to the Chief of 
Field Service. A number of special agents are assigned to duty with 
each Chief of Field Division and operate under his supervision. 

Information regarding supposedly invalid entries is obtained from va- 
rious sources. Such information is referred to the Chief of Field Di- 
vision in whose territory the land involved is situated. He, in turn re- 
fers the matter to on e of his agents for investigation and report ' If 
upon investigation the agent discovers facts sufficient to warrant can- 
cellation of the entry, an (adverse report will be submitted to his Chief 
of Division, who will transmit same to the General Land Office. 

If, upon consideration of the report, it is found that the charges of 
the agent, if true, are sufficient to warrant cancellation of the entry or 
rejection of the application the Commissioner will direct adverse pro- 
ceedings. 

— 5— 



±Q CONTEST PROCEDURE 



••The f cllo wing rules are prescribed for the government of proceedings had 
upon the reports of special agents of this office. All existing instructions in 
conflict herewith are superseded. , 

1 The purpose hereof is to secure speedy action upon claims to the pubuc 
land* and to allow claimant, entryman, or other claimant of record, oppor- 
tunity to file a denial of the charges against the entry or claim, and to be 
heard thereon if he so desires. 

2 Upon receipt of the special agent's report this office will consider the 
same and determine therefrom whether the charges, if true, would warrant 
the rejection or cancellation of the entry or claim. 

3 Should the charges, if not disputed, justify the rejection or cancellation 
of the entrv or claim the :ocal officers will be duly notified thereof and directed 
to is«ue notice of such charges in the manner and form hereinafter provided 
for, which notice must be served upon the entryman and other parties in 
interest shown to be entitled to notice. 

4 The notice must be written or printed and must state fully the charges 
as contained in the letter of this office, the number of the entry or claim, 
subdivision of land involved, name of entryman or claimant or other known 
parties in interest. 

5. The notice must also state that the charges will be accepted as true, 
(a) unless the entryman or claimant files in the local office within thirty days 
from the receipt of notice a written denial, under oath, of said charges, with 
an application for a hearing, (b) or if he fail's to appear at anj- hearing that 
mav be ordered in the case. 

6.' Xctice of the charges may in all cases be served personally upon the 
proper party by any officer or person, or by registered letter mailed to the last 
address of the party to be notified, as shown by the record, and to the postoffice 
nearest to the land. Proof of personal service shall be the written acknowledg- 
ment cf the person served, or the affidavit of the person who served the notice 
attached thereto, stating the time, place, and manner of service. Proof of 
service of notice by registered mail' shall consist of the affidavit of the person 
who mailed the notices, attached to the postoffice registry return receipts, or 
the returned unclaimed registered letters. 

7. If a hearing is asked for, the local officers will consider the same and 
confer with the chief of field division relative thereto and fix a date for the 
hearing, due notice of which must be given entryman or claimant. The above 
notice may be served by registered mail. By ordinary mail a like notice will 
be sent the chief of field division, and when the land is in a national forest, 
the proper fcrest field officer will be also notified. 

8. The chief of field division will duly submit, upon the form provided there- 
for, to this office, an estimate of the probable expense required on behalf of 
the Government. He will also cause to be served subpoenas upon the Gov- 
ernment witnesses and take such other steps as are necessary to prepare the 
case for prosecution. 

9. The special agent must appear with his witnesses on the date and at the 
place fixed for said hearing, unless he has reason to believe that no appear- 
ance for the defence will be made, in which event no appearance on behalf 
of the government will be required. The special agent must, therefore, 
keep advised as to whether the defendant intends to appear at the hearing. 
The chief of field division may, when present, conduct the hearing on behalf 
of the government. 

10. If the entrj-man, or claimant fails to deny the charges under oath and 
apply for a hearing, or fails to appear at the hearing ordered, without showing 
good cause therefor, such failure will be taken as an admission of the truth of 
the charges contained in the special agent's report and will obviate any neces- 
sity for the government's submitting evidence in support thereof, and the 
Register and Receiver will forthwith forward the case with recommendation 
thereon to the General Land Office, and notify the parties by registered mail 
of the action taken. 

11. Upon the day set for the hearing and upon the day to which it may be 
continued, the testimonj- of the witnesses for either party may be submitted, 
and both parties, if present, may examine and cross-examine the witnesses, 
under the rules, the government to assume the burden of p»roving the special 
agent's charges. 

12. If a hearing is had, as provided in paragraph 11, the local officers will 
render their decision upon the record, giving due notice thereof, in the usual 
manner. 

13. Appeals or briefs must be filed under the rules and served upon the 
special agent in charge of hearing, and when land is in a National' Forest, 
upon the proper District Assistant to the Solicitor of the Department of 
Agriculture. The special agent will not file any appeal or brief unless directed 
to do so by this office, or the chief of field division. 

14. The above proceedings will be governed by the Rules of Practice. All 
notices served on claimants or entryman must likewise be served upon trans- 
ferees or mortgagees." (Instructions, 39 L. D., 458). 



CONTEST PROCEDURE 47 



On receipt of the Commissioner's letter directing adverse proceedings 
the register and receiver will docket same and note it on their records 
as a contest. 

Notice of charges (Appendix U) will be served upon the claimant 
and other parties whose interest appears of record personally or by 
registered mail. When service is made by mail notice will be sent to 
the claimant's address of record and to the post office nearest the 
land. 

The claimant is /allowed thirty days after service of notice within 
which to file answer to the charges. The answer should be in dupli- 
cate. 

If no answer be filed within the time allowed, or, if service be made 
by registered mail and the notices sent to the (address of record and to 
the postoffice nearest the land are returme'd unclaimed after having been 
held for thirty days, the charges are accepted as true and decision rec- 
ommending cancellation will be rendered and served upou the claimant 
as in private contests (ante, p. 20). An appeal will not lie from a de- 
cision rendered on default (Rule 49). On the same day decision is ren- 
dered, tae record will be transmitted to the General Land Office for 
final action (Par. 10, Instructions, ante). 

If answer be filed, a copy of same will be transmitted to the Chief 
of Field Division having jurisdiction, who will advise the local officers 
of the date he desires the case to be set for hearing. Notice of Hearing 
(Appendix M) will be served din the same manner as in private contests 
(Rule ,15, p. 20, 21). 

After the case is set for hearing the proceedings are, so far as the 
claimant, transferees and incumbrancers are concerned exactly tlie same 
as in private contests. Service of all papers, motions, etc., must be 
made upon the Chief of Field Division and if the entry be situated within 
a National Forest upon the proper District Assistant to the Solicitor of 
the Department of Agriculture The reason service is made upon the 
Chief of Field Division is because the special agent representing the 
government at the hearing is, ordinarily, assigned to the case for that 
purpose only. 

Should the decsion of the local officers be adverse to the claimant, 
he may appeal as in private cases. If adverse to the government no 
appeal will be taken, but the case will be decided by the Commissioner 
on its merits. If the Commissioner's decision be adverse to the claim- 
ant he may appeal. Should it be adverse to the government, the case 
will be closed. 

Adverse proceedings in the nature of a rule to show cause (Rule 73) 
wihy an entry should not be canceled for invalidity or defect apparent of 
record are not treated as contests. The proceedings in such cases are 
governed by the rules relating to proceedings before the Commissioner in 
ex parte cases Rules 64, 65, 73. 96). The defect oir invalidity will be 
pointed out by the Commissioner, and the thing to be done or the evi- 
dence necessary to be furnished in order to cure same will be made 
clear. , , i 



48 CONTEST PROCEDURE 



APPENDIX A. 

(The letters refer to clauses of Rule 2.) 

APPLICATION TO CONTEST. 

DEPARTMENT OF THE INTERIOR, 

United States Land Office. 

Serial No. 06783. 

Contest No 

Filed 
June 16, 1911 

Beach, North Dakota, 
June 15, 1911. 

I, the undersigned Michael Sweenej-. . . ., residing at ....Beach, N. D. . . . 

being duly sworn, upon my oath state: That I am well acquainted with the 

tract of land embraced in . . . .homestead. . . . entry, Serial No 06789. . . ., made 

on July 5, 1907, (a) by ....Hans S'chlosser. . . ., whose present place of 

residence is. .. .Sentinel Butte...., State of.... North Dakota....; (b) for the 

B%NW%, Lots 1 and 2 Section ..30.., Township. . .140N , range 

....106 W...., Fifth Principal Meridian, and know the present condition of 
the same; that said land is. .. .agricultural. .. .in character; (c) that in so 
far as I know the said entry is the only proceeding now pending for the 

acquisition of title to said land, except (none)... ; (d) that said 

....Hans Schlosser has never established residence upon said land; that 

he has never improved or cultivated the same....; (e) that I claim an interest 
in or desire and intend, if permitted to do so, to acquire title to the said 
land under the provisions of.... the homestead. .. .law, and state the following 
facts which show my qualifications to do so: I am not under the age of 
twenty-one years, I am a citizen of the United States, or have declared my 
intention to become such, I have not heretofore made any entry which would 
disqualify me from making entry under the above-mentioned law, I have not 
since August 30, 1890, acquired title to, nor am I now claiming under any of 
the agricultural land laws, an amount of land which, together with the land 
described above, or the part thereof which I desire to enter, will exceed in 
the aggregate 320 acres, and I am not the proprietor of more than 160 acres 
of land in any state or territory; (f) and I further swear that this contest 
is not being collusively or speculatively initiated, but is being instituted and 
will be diligently prosecuted in good faith for the sole privilege of acquiring 
title to said land or some part thereof in my own and sole interest. 

(g) I, therefore, ask that I be permitted to prove the allegations made in 
this affidavit at such time and place as may be named therefor, and that 
after proving said allegations, and my payment of all the costs incurred in 
this proceeding, I be permitted to make entry of said lands or a part thereof 
under the laws above specified. 

(h) I desire that all papers affecting this contest be served upon me at the 

following address: ....Beach, N. D or upon my attorney, T. H. Callihan, 

Medora, N. D. 

(s) Michael Sweenej*. 
I hereby certify that the foregoing affidavit was subscribed and sworn to 
before me by the affiant named therein, after it had been read to or by 

him, in nry presence, in.... Beach, N. D , on this 15th.... day of.. June.-, 

1911, he, the said affiant, being well known to me to be the same person he 
therein represents himself to be (or having been fully made known to me as 

such person by of. , who is well known to me.) 

(s) F. W. McCarthy, 
(SEAL) Notary Public, 

Billings County, N. D. 
Also appeared, at the same time and place, ....Clarence Muldoon, resid- 
ing at ....Beach, N. D and Timothy Finnegan , .residing at 

....Burke}*, N. D who being duly sworn, depose and say: That they are 

acquainted with the tract described in the above affidavit, and know from 
personal' knowledge and observation that the statements therein made are true. 

(s) Clarence Muldoon. 
(s) Timothy Finnegan. 
I HEREBY CERTIFY that the foregoing affidavit was read to or by affiants 
in my presence before affiants affixed signatures thereto; that affiants are to 
me personally known (or have been satisfactorily identified before me by 

) ; and that the said affidavit was duly subscribed before me 

at Beach, N. D , this 15th day of June , 1911. 

(s) F. W. McCarthy, 
(SEAL) Notary Public, 

Billings County, N. D. 
NOTE. — This application must be filed in duplicate. If filed by a person 
not seeking to acquire title to or claiming any interest in the land, or by 
one who does not show his qualifications as an entryman, it must be referred 
to the Chief of Field Division. 



CONTEST PROCEDURE 49 



APPENDIX B. 
(The letters refer to clauses of Rule 5.) 

NOTICE OF CONTEST. Serial No. 06780. 

(For Personal Service.) Contest No. 2345. 

DEPARTMENT OF THE INTERIOR, 
United States Land Office, 

Dickinson, N. D 

June 17, 1911 

(a) To Hans Schlosser of Sentinel Butte, N. D Contestee: 

You are hereby notified that. .. .Michael Sweeney...., who gives. .. .Beach, N. 

D , as his post-office address, did on.... June 16 1911, file in this office 

his dulv corroborated application to contest and secure the cancellation of 

your homestead Entry No.. .13279. ., Serial No. . .06789. ., made.. July 5.., 

1907. for EU NWVi, Lots 1 and 3 , Section. . .30. . ., Township. . .140N. . ., 

Range. . .106TW . . Fifth Principal Meridian, upon the grounds set forth in the 
copy of said application to contest which is attached to and made a part of 
this notice. 

(b) Tou are, therefore, further notified that the said allegations will be 
taken by this office as having been confessed by you, and your said entry will 
be canceled thereunder without your further right to be heard therein, either 
before this office or on appeal, if you fail to file in this office, within thirty 
days after the service of this notice, your answer, under oath, specifically 
meeting and responding to these allegations of contest, or if* you fail within 
that time to file in this office due proof that you have served a copy of 
3*our answer on the said contestant, either in person or by registered mail. 
If this service is made by the delivery of a copy of your answer to the con- 
testant in person, proof of such service must be either the said contestant's 
written acknowledgement of his receipt of the copy, showing the . date of its 
receipt, or the affidavit of the person by whom the delivery was made stating 
when and where the copy was delivered; if made by registered mail, proof of 
such service must consist of the affidavit of the person by whom the copy 
was mailed, stating when and the post office to which it was mailed, and this 
affidavit must be accompanied by the postmaster's receipt for the Tetter. 

You should state in your answer the name of the post-office to which you 
desire future notices to be sent to you. 

(s) TV. A. Quinlan , Register. 

(s) .... J. G. McGuire Receiver. 

PROOF OF PERSONAL SERVICE. 

State of North Dakota, ] ._._ , _ _. ....... . 

County of Billings. } ss - < Flled June 29 » 1911 -> 

....T. H. Callihan. . . ., being first duly sworn, on his oath says, that he is 

over the age of 18 years; that on June 25...., 1911, he served the above 

notice of contest, together with a copy of the application to contest, upon 
Hans Schlosser by registered letter containing true copies of said papers, and 
as proof thereof attaches hereto registry return receipt, signed by the said 
Hans Schlosser, showing receipt of said letter by him at Sentinel Butte, N. D. 

(s) T. H. Callihan. 
Subscribed and sworn to before me June 27, 1911. 

(s) L. W. Paul, 
(SEAL) Clerk of Court, 

Billings County, N. D. 
APPENDIX C. 

AUTHORIZATION. 

Filed Serial No. 06789. 

June 16, 1911. Contest No 

To T. H. Callihan, Esq., 

Medora, N. D.: 
Sir: I, Michael Sweeney, by occupation a farmer, and residing at Beach, 
Billings county, North Dakota, do hereby authorize you to appear for and 
represent me as my attorney before the U. S. Land Office at Dickinson, North 
Dakota, and before the Commissioner of the General Land Office and the In- 
terior Department at Washington, D. C, in the matter of my contest against 
homestead entry No. 13279, Serial No. 06789, of Hans Schlosser, made July 
5, 1907, for the EVaNWii, lots 1 and 2, Sec. 30, T. 140 N., R. 106 W., 5th P. M., 
and to prosecute said cause to a final determination. 

(s) Michael Sweeney. 
I accept the above appointment and hereby enter appearance for Michael 
Sweeney this 16th day of June, 1911. 

I would request that all notices and papers relating to the case to be served 
by, or upon, the contestant, be sent to me at Medora, N. D. 

(s) T. H. Callihan. 



CONTEST PRC :EI U 



APPENDIX D. 
Filed Serial X: M»78 

August 27, 1911. r. :es: X: X." 

KNOW ALL MEN BY THESE PRESENTS 

That I. . .Hans Schlosser, : Sentinel Butte. . .of the county of... Billings. 

and .... State. . . .of. . . .Xorth Dakota. . . .have made, constituted and appointed, 
and I - sents dc make, constitute and appoint. . . .v. H. Schwartz : 

aty of Stark and. . - t. . . North Dakota . . . 

rue and lawful attorney for and in my name, place and stead cc 

..'..defend the contest brought by Michael Sweeney against my homestead 

made Fuly " 2 E%NW^4, Lots 1 and 2. 

Section SO, T. 14C N W., Fifth Principal Meridian, before the United 

s Land Office al oson, X. I fore the Commissioner of the 

General Land Office and the Departmen: of the Interior at Washington, D. C. 

That I grant and give unto. .. .my. .. .said attorney full authority and power 

to do and perform ail and every act and thing whatsoever requisite and 

to be done in the premises, as fully, to all intents and purposes as 

...I... might or could do if personally present with full power ::" substitution 

and : ratifying and confirming all that ?aid attor- 

nev shail lawfully do or cause to be done by virtue hereof. 

IX WITNESS WHEREOF I have hereunto set my hand and seal 

:Xs. .::'.' \ : - ..-" . A. _•. 1 . "_: 

s Hans Schlosser SEAL' 
ed and delivered in presence of 
X:v.e? ^ye-:: 
Thomas Brown. 
of North Dakota, } 
County cf Billings. 5S 

On this. .. .25th. . .day of... August in the year of our Lord one thousand 

nine hundred and. . . . eleven. . . . , before me, . . . . T. H. Schmidt . . . . , a Xotary 

Public. .. .within and for said county and state, personally appeared. .. .Hans 
Schlosser. .. .known to me to be the same person -who is described in ana who 
executed the above and foregoing instrument, and acknowledged that he 
:ed the same. 

s T . H. Schmidt, 
S EAL ■ Notary Public, 

X X:\_~ ?:unty, X E 
My commission expires December lo, 1912. 

APPENDIX E. 

DEPARTMENT JE THE INTERIOR, 

"United States Land Office, 

Serial IT; ; ~s 
: ntest No 2345 

. . . .Dickinson, Xorth Dakota 

June IT, 1911. 

NOTICE OF REJECTION OR SUSPENSION 

Michael - ney, Beach, X D., 

Through T. H. Cailihan, Attorney. Medora, X. D.: 
Sir: In reference to your application to ....contest H. E. X: 13272 Serial 

06789) of Hans Schlosser, made July 5, 1907 for the . .E- X "-_. Xts 1 arX 

Section ..30... Township. . .14C X .... Range ..10€ W 5th Principal 

Meridian, you are advised that on.... this day...., the Register and Receiver 

of this office rejected the same for the reason that the charges laid 

therein, if accepted as true, are not sufficient to warrant cancellation of the 
entry-. 

You are allowed thirty days from notice hereof in which to appeal from this 
decision to the Commissioner : the General Land Office: and upon your failure 
to take such action within the time specified, the case will be c.esed without 
further notice tc you from this :r~ce. If an appeal is taken therefrom it must 
be filed in this office. 

Please return this letter, in 3ase ; u take any action or desire further in- 
formation on the subject. 

E espectfully, 

s . A. '>;X.?.r. . Register 
s ... .J. G. McGuire Receiver. 



CONTEST PROCEDURE 



APPENDIX F. 

AFFIDAVIT AND ORDER FOR PUBLICATION OF NOTICE OF CONTEST. 

DEPARTMENT OF THE INTERIOR, 

United States Land Office, 

Filed Serial No. 06789, 

July 9, 1911. Contest No. 2345. 

. . . .Medora, N. D.,. . . . 

July 8, 1911 

....Michael Sweeney.... Contest of .. .homestead. . .Entry No. .. .06789. ., 

dated July 5..., 1907, for the. . .EVoNWV, , 

Hans Schlosser Lots 1 and 2.., of Sec... 30... Twp...l40 N. .. 

R 106 W , Fifth Principal Meridian. 

State of North Dakota ) 

County of Billings j ss - 

....T. H. Callihan. . . ., being duly sworn, deposes and says that he is.... at- 
torney for the contestant. .. .in the above-entitled contest; that he has, with 
a view to obtaining personal, service of the notice, made diligent search and 
inquiry for the defendant within the last fifteen days, as follows: That he has 

made personal inquiry of . . . . John Smith postmaster at ....Sentinel Butte, 

N. D the address of record, and of ... .William Jones...., postmaster at 

...Beach, N. D that being the nearest post office to the land involved... 

as to the place of residence or whereabouts of said.... Hans Schlosser and 

that he has made like inquiry of Clarence Muldoon, James McGraw and Ter- 

rence Donnelly...., who reside in the immediate neighborhood of said land. 
and from his own personal knowledge, as well as the information acquired 
from said parties, states that said.... Hans Schlosser. .. .abandoned said land 
and went to. .. .Aberdeen. . ., in the state of ...South Dakota.... or on about 
the... 6th... day of . . . . July. . ., 1907; that he has since that time been absent 
from said land and can not be found, and that his last place of residence or 
post-office address was. .. .Aberdeen, S. D and on account thereof a per- 
sonal service of the notice of said contest cannot be made. 

Wherefore affiant asks for an order to serve the said notice by publication. 

(s) T. H. Callihan. 

Subscribed and sworn to before me this 8th day of . . . July. . ., 1911. 

(s) L. W. Paul, 
(SEAL) Clerk of Court, 

Billings County, N. D. 
It appearing to the satisfaction of this office, from the foregoing affidavit, 
that personal service of the notice of said contest can not be made upon the 
defendant, it is hereby ORDERED that notice of contest be served upon the 
defendant by publication, pursuant to the rules of practice in such cases 
made and provided. 

(s) . . . .W. A. Quinlan. . . ., Register. 
(s)....J. G. McGuire...., Receiver. 
NOTE: Personal service is required in all cases where the defendant can 
be found, whether he is a resident or non-resident of the state. 

APPENDIX G. 

NOTICE OF CONTEST. Serial No. 06789 

(For Publication.) Contest No. 2345 

DEPARTMENT OF THE INTERIOR, 
United States Land Office, 

Dickinson, N. D 

July 9, 1911 

To.... Hans Schlosser. .. .of ... .Sentinel Butte, N. D Contestee: 

You are hereby notified that. .. .Michael Sweeney...., who gives ...Beach, N. 

D , as his post-office address, did on.... June 16..., 1911, file in this office 

his duly corroborated application to contest and secure the cancellation of 

3 r our homestead. . .Entry No. ...13279..., Serial No 06789 made July 

5..., 1907, for EVsNW 1 /!, Lots 1 and 2 Section. .30. ., Township. .140 N.., 

Range ..106 W..., Fifth Principal ..Meridian, and as grounds for his contest 
alleges that.... you have never established residence upon said land; that you 
have never improved or cultivated the same.... 

You are, therefore, further notified that the said allegations will' be taken 
by this office as having been confessed by you, and your said entry will be 
canceled thereunder without your further right to be heard therein, either 
before- this office or on appeal, if you fail to file in this office within twenty 
days after the FOURTH publication of this notice, as shown below, your 
answer, under oath, specifically meeting and responding to these allegations 
of contest, or if you fail within that time to file in this office due proof that 
you have served a copy of your answer on the said contestant either in per- 
son or by registered mail. If this service is made by the delivery of a copy 
of your answer to the contestant in person, proof of such service must be 
either the said contestant's written acknowledgment of his receipt of the 
copy, showing the date of its receipt, or the affidavit of the person by whom 



52 CONTEST PROCEDURE 



the delivery was made, stating when and where the copy was delivered; if 
made by registered mail, proof of such service must consist of the affidavit 
of the person by whom the copy was mailed stating when and the post-office 
to which it was mailed, and this affidavit must be accompanied by the post- 
master's receipt for the letter. 

You should state in your answer the name of the post-office to which you 
desire future notices to be sent to you. 

(s) W. A. yuinlan , Register. 

(s) J. G. McGuire ..... Receiver. 

Date of first publication July 17, 1911 

Date of second .publication July 24, 1911.... 

Date of third publication July 31, 1911 

Date of fourth publication. . .August 7, 1911 

NOTE: Copy of this notice, as published, together with copy of the affidavit 
of contest, must be sent, by the contestant, within ten days aiter the first 
publication, by registered mail, directed to the party for service upon whom 
such publication is being made, at the last address of such party as shown by 
the records of the Land Office, and also at the address named in the affidavit 
for publication, and also at the post-office nearest the land. 

Copj* of this notice, as published, must be posted in the office of the register, 
and also in a conspicuous place upon the land involved, such posting to be 
made within 10 days after the first publication as hereinabove provided. 

APPENDIX H. 

PROOF OF PUBLICATION. 

State of North Dakota, 1 
County of Billings. j ss - 

Filed 
August 17, 1911. 
B. A. Williams, of said county and state, being first duly sworn, on oath says: 
That he is the publisher of the Billings County Chronicle, a "legal" news- 
paper of general circulation, printed and published weekly at Beach, in said 
countv and state and during the time hereinafter mentioned; 

That the advertisement headed NOTICE OF CONTEST, a printed copy of 
which is hereto attached, marked Exhibit A, and made a part hereof, was 
published in the regular and entire issue of said paper, and not in any sup- 
plement thereof, once a week for four consecutive weeks, to wit: July 17, 
July 24, July 31, and August 7, 1911. 

(s) B. A. Williams. 
Subscribed and sworn to before me this 8th day of August, 1911. 

(s) F. W. McCarthy, 
(SEAL) Notary Public, 

Billings County, N. D. 
NOTE: A cop3 r of the notice as published must be attached. 

APPENDIX I. 

PROOF OF MAILING. 

Filed Serial No. 06789. 

August 17, 1911. Contest No. 2345. 

Michael Sweeney.... ) Contest of .. .homestead. . .Entrv No. .. .06789. ., 

v. [ dated July 5..., 1907, for the. . .E^NWi/i, 

Hans Schlosssr ) Lots 1 and 2.., of Sec... 30.., Twp. ..140 N. . 

R 106 W , Fifth Principal Meridian. 

State of North Dakota \ 

County of Billings j ss - 

T. H. Callihan, being first duly sworn, on oath says: That he is attorney 
for the above-named contestant; that on July 26, 1911, and within ten days 
after the first publication of notice of contest in the above-entitled proceeding, 
he mailed registered letters addressed to Hans Schlosser, contestee, herein, 
at Sentinel Butte, N. D. ; Beach, N. D.; and Aberdeen, S. D. That each of 
said letters contained a true copy of the printed notice of contest hereto 
attached, marked exhibit B, and of the application to contest filed June 16, 1911. 

As proof of mailing, affiant attaches hereto, as exhibits C, D and E, the 
receipts issued by the postmaster at Medora, N. D., when receiving said letters 
for registration. 

(s) T. H. Callihan. 

Subscribed and sworn to before me this 9th day of August, 1911. 

(s) L. W. Paul, 

(SEAL) Clerk of Court, 

Billings County, N. D. 

NOTE: Attach a printed copy of the contest notice and postmaster's re- 
ceipts for letters mailed. 



CONTEST PROCEDURE 53 



APPENDIX J. 

PROOF OF POSTING OF NOTICE. 

Filed Serial No. 06789. 

August 17, 1911. Contest No. 2345. 

Michael Sweeney ) Contest of .. .homestead. . .Entry No 06789.., 

v. [ dated July 5..., 1907, for the. . .E%NW%, 

Hans Schlosser ) Lots 1 and 2.., of Sec. ..30.., Twp. ..140 N... 

R....106 W , Fifth Principal Meridian. 

State of North Dakota 1 

County of Billings j ss - 

Michael Sweeney, "being first duly sworn, on oath says: That on July 26, 
1911, and within ten days after the first publication of notice of contest in 
the above-entitled proceeding, he posted a true copy of the printed notice of 
contest hereto attached, marked exhibit F, upon the above-described land; 
that said notice was securely posted in a conspicuous place and in such a 
manner as to attract attention, and if unmolested would remain posted for 
twenty days after the last publication as specified therein. 

(s) Michael Sweeney. 
Subscribed and sworn to before me this 9th day of August, 1911. 

(s) F. W. McCarthy, 
(SEAL) Notary Public. 

Billings County, N. D. 

APPENDIX K. 

ANSWER BY CONTESTEE. 

DEPARTMENT OF THE INTERIOR, 

United States Land Office. 
Filed Serial No. 06789. 

August 27, 1911. Contest No. 2345. 

Sentinel Butte, N. D 

August 25, 1911 

....Michael Sweeney ) Contest of .. .homestead. . .Entry No 06789.., 

V. }■ dated July 5..., 1907, for the. . .E%NW%, 

Hans Schlosser ) Lots 1 and 2.., of Sec. ..30.., Twp. ..140 N.., 

R....106 W Fifth Principal Meridian. 

State of North Dakota 1 

County of Billings j ss - , 

Hans Schlosser...., defendant in the above-entitled case, being first duly 

sworn, for answer to the application to contest says that.... on January 6, 
1908, he established residence upon the above-described land and has main- 
tained same since that date; that he has improved and cultivated the land; 
that he denies each matter and thing alleged in the application of Michael 

Sweeney as cause for contest of his entry 

I desire that all notices or other papers shall be sent to me for service at 
the following address: ....Sentinel Butte, N. D., or my agent, V. H. Schwartz, 
Dickinson, N. D. 

(s) Hans Schlosser. 
Subscribed and sworn to before me this. .. .25th. .. .day of .. .August. . ., 1911. 

(s) T. H. Schmidt, 
(SEAL) Notary Public, 

, Billings County, N. D. 

PROOF OF SERVICE. 

V. H. Schwartz , being first duly sworn, deposes and says that on 

....August 26...., 1911, he served the above answer by. .. .sending a true copy 
of same by registered letter to T. H. Callihan, Medora, N. D., and as proof 
thereof attaches hereto the receipt issued by the postmaster at Dickinson, 
N. D., when receiving said letter for registration. 

(s) V. H. Schwartz. 

Subscribed and sworn to before me this 26th.... day of. . .August. . ., 1911. 

(s) Jacob Weiss, 
(SEAL) Notary Public, 



NOTE: Attach postmaster's receipt for letter. 



Stark County, N. D. 



CONTEST PROCEDURE 



APPENDIX L. Serial No. 06781). 

DEPARTMENT OF THE INTERIOR, Contest No. 2345. 

United States Land Office, 
Dickinson, N. D. 

August 28, 1911. 
J. A. Drew, 

United States Commissioner, 

Beach, North Dakota. 
Sir: You are hereby authorized to take testimony in the contest case of 

....Michael Sweeney. .. .vs Hans Schlosser. . . ., involving ...homestead... 

entry Serial No. 06789.., made. .July 5, 1907..., for the. . .E%NW%, Lots 1 and 

2 , Section.. 30.., township. .140 N. ... R. ...106 W. .., 5th P. Meridian. 

The parties are to appear before 3 r ou at ..10:00 o'clock, .a. .m. on the... 23rd.. 
day of. ..October.. ., 1911. 

A copy of the notice of hearing is inclosed herewith for your information. 
Return all papers in the case, together with your report before. .. .October. . . 
30, 1911, at which date final hearing will be had at this office. 

Very respectfully, 

(s)....W. A. Quinlan...., Register. 
(s)....J. G. McGuire...., Receiver. 

APPENDIX M. 

NOTICE OF HEARING. 

DEPARTMENT OF THE INTERIOR, 

United States Land Office, Serial No. 06789 

Dickinson N. D. Contest No. 2345 

August 28, 1911. 
T. H. Callihan, Attorney for Contestant, 

Medora, N. D. 
V. H. Schwartz, Agent for Contestee, 
Dickinson, N. D. 
A sufficient contest affidavit having been filed in this office by. .. .Michael 

Sweeney , contestant, against. . .homestead. . .Entry No. ...13279..., Serial 

No.... 06789..., made... July 5, 1907..., for. . .E%NW^4, Lots 1 and 2..., Sec- 
tion. . .30. . ., Township. . .140 N. . ., Range . . .106 W. . ., Fifth Principal Meridian, 
by... Hans Schlosser..., contestee, in which it is alleged that.... said Hans 
Schlosser has never established residence upon said land; that he has never 
cultivated or improved the same.... and the said contestee having filed a 
sufficient answer thereto, said parties are hereby notified to appear, respond, 
and offer evidence touching said allegations at 10 o'clock a. m. on. .. .October 

23rd, 1911, before.... J. A. Drew, United States Commissioner, Beach, N. D 

*(and that final hearing will be held at 10 o'clock a. m. on. .. .October 30...., 
1911, before the Register and Receiver at the United States Land Office in 

.... Dickinson, N. D 

(s)....W. A. Quinlan Register. 

(s)....J. G. McGuire...., Receiver. 
*If testimony is to be taken before the Register and Receiver, and not under 
Rule 28, the words in () parentheses should be erased. 

APPENDIX N. 

DEPARTMENT OF THE INTERIOR, Serial No. 06789. 

* Contest No. 2345 
BEFORE THE REGISTER AND RECEIVER, 

UNITED STATES LAND OFFICE. 

Filed Medora, N. D., 

September 1, 1911. August 30, 1911. 

....Michael Sweeney.... ) Contest of .. .homestead. . .Entry No. .. .06789. ., 

v. }■ dated July 5..., 1907, for the. . .E%NW%, 

Hans Schlosser ) Lots 1 and 2.., of Sec. ..30.., Twp...l40 N.., 

R 106 W , Fifth Principal Meridian. 

NOTICE OF INTENTION TO TAKE DEPOSITIONS ON INTERROGATORIES 
To....V. H. Schwartz, Agent for Contestee, 
Dickinson, N. D. : 
You will take notice that the contestant in the above -entitled proceeding 
has this day filed an application to take, on written interrogatories, the de- 
positions of.... Dennis Moriarity, and Thomas McGinnis. . . .on the. .. .20th. .. . 
day of ... .September, 1911, between the hours of... 10 o'clock a. m., and ...5 
o'clock p. m. of said before, before....C. E. Goodwin..., a... notary public..., 
at his office in. . .Schafer. . ., County of . . .McKenzie. . ., State of... North Da- 
kota..., a copy of which application and the interrogatories to be propounded 
to said witnesses is hereto attached, and you are notified that, unless you 
show good and sufficient reasons to the contrary, a commission will be issued 
on said application at the expiration of ten days from the service of this 



CONTEST PROCEDURE 5y 



notice upon you, and said depositions will be taken at the time and place 
named herein and said taking will he continued from day to day, if neces- 
sary, until completed: and you will not thereafter be heard to question e.^ner 
the form or sufficiency of said application or the validity or effect of such 
commission. 

(s) T. H . Callihan, 
Attorney for Contestant. 



ss. 



State of North Dakota, 

County of Billings. j 5 

T. H. Callihan, being first duly sworn, on his oath says: That on August 
30, 1911, he served the above notice of intention to take depositions, together 
with copies of the application for commission in that behalf and the inter- 
rogatores to be propounded to the various witnesses, upon V. H. Schwartz 
at Dickinson, N. D., his address of record, by registered letter containing true 
copies of said papers; and as proof thereof attaches hereto the postmaster's 
receipt for said letter. 

(s) T. H. Callihan. 

Subscribed and sworn to before me this 30th day of August, 1911. 

(s) L. W. Paul, 

(SEAL) Clerk of Court, 



Billings County, N. D. 



APPENDIX O. 



DEPARTMENT OF THE INTERIOR, 
BEFORE THE REGISTER AND RECEIVER, 

UNITED STATES LAND OFFICE. Serial No. 06789. 

Contest No. 2345. 
Filed Medora, N. D., 

September 1, 1911. August 30, 1911. 

.... Michael Sweeney .... i Contest of . . . homestead . . . Entry No 06789 . . , 

v. >■ dated July 5..., 1907, for the. . .E%NW%. 

Hans Schlosser ) Lots 1 and 2.., of Sec... 30... Twp. ..140 N. , 

R 106 W , Fifth Principal Meridian. 

AFFIDAVIT AND MOTION FOR COMMISSION TO TAKE DEPOSITIONS 
ON INTERROGATORIES. 

The undersigned, being duly sworn, on his oath says, that he is attorney 
for the contestant in the above-entitled proceeding; that the following persons 
are material witnesses for the contestant in said case and reside as stated, 

to wit:. .. .Dennis Moriarity Residence, .... Schafer N. D. ; ....Thomas 

McGinnis. . . ., Residence Schafer...., N. D. ; that each of said witnesses 

....reside more than fifty miles, by tne usual traveled route, from the place 

of trial and by reason thereof can not be procured to attend the trial 

of said case before the Register and Receiver at the local land office; and 
there , is hereto attached and made a part hereof, the interrogatories to be 
asked each of said witnesses upon behalf of the contestant herein; that due 
service of notice of contestant's intention to take such depositions was had 
upon V. H. Schwartz, agent for the contestee herein, on August 30, 1911, as 
more fully appears by'' the copy of such notice and return thereon herewith 
filed. 

WHEREFORE, the undersigned, as attorney for the contestant, moves that, 
after the expiration of ten days from said date of service, a commission with 

all interrogatories attached issue to....C. E. Goodwin a.... notary public.., 

authorized to administer oaths in the county of . . .McKenzie State of.... 

North Dakota...., commanding him to take the depositions in the commission 
directed as by law required, at his office at. ... Schafer, N. D...., at 10 a. m., 
on. .. .September 20, 1911, and from day to day thereafter until taken. 

(s) T. H. Callihan. 

Subscribed and sworn to before me this 30-th day of August, 1911. 

(s) L. W. Paul, 

(SEAL) Notary Public. 

Billings County, N. D. 

ORDER— ALLOWANCE OF MOTION. 

The foregoing affidavit and motion being considered, and the undersigned 
being advised, the said motion is this 12th day of September, 1911, allowed 
and commission will issue. 

(s) . . . .W. A. Quinlan. . . ., Register. 
(s)....J. G. McGuire...., Receiver. 



56 CONTEST PROCEDURE 



APPENDIX P. 

DEPARTMENT OF THE INTERIOR, 
BEFORE THE REGISTER AND RECEIVER, 

UNITED STATES LAND OFFICE, Serial No. 06789. 

Contest No. 2345. 
Dickinson, N. D., 

September 12, 1911. 

Michael Sweeney ) Contest of .. .homestead. . .Entry No 06789. ., 

v. C dated July 5..., 1907, for the. . .E%NWU, 

Hans Schlosser ) Lots 1 and 2.., of Sec... 30.., Twp...l40 N.-, 

R 106 W Fifth Principal Meridian. 

COMMISSION TO TAKE DEPOSITIONS ON INTERROGATORIES. 
To C. E. Goodwin, Notary Public, GREETING: 

KNOW YOU, That you are hereby appointed and vested with full power 
and authority to examine, under oath, on the interrogatories hereto attached, 

at your office at Schafer, McKenzie county, North Dakota , on the 20th 

day of September, 1911, at 10 a. m., and daily thereafter until complete, the 

following persons, to- wit: Dennis Moriarity and Thomas McGinnis , and 

cause said interrogatories to be written out and the answers thereto to be 
inserted immediately underneath the respective questions; and the whole 
thereof for each witness you will cause to be read over to said witness and 
you will the saiu witness swear and have him subscribe thereto in the usual' 
manner before said witness is discharged; that you will attach your certificate 
to each said deposition stating that the same was subscribed and sworn to 
by the deponent at the time and place herein mentioned; that the said deposi- 
tions and certificates, together with this commission and interrogatories, you 
will then seal up, indorse the title of this cause upon the envelope, and the 
whole return by mail or express with all possibl'e dispatch, to be used on 
the trial of the above-entitled case now pending before us. 

(s) . . . .W. A. Quinlan Register. 

(s) J. G. McGuire . . . . , Receiver. 

RETURN OF COMMISSION. 

According to the command of the within writ, I did, on the 20th day of 
September, 1911, at 10 a. m., and daily until complete, at my office at Schafer, 
McKenzie county, North Dakota, execute the power and authority upon me 

conferred, in this, that the said Dennis Moriarity and Thomas McGinnis 

then and there appeared before me and were by me first duly sworn to tell 
the truth, the whole truth, and nothing but the truth in said action; and each 
of said witnesses being so sworn, I examined upon the interrogatories to him 
addressed as appended to said writ, and caused to be written out said in- 
terrogatories and the answers thereto to be written out and inserted imme- 
diately underneath the respective Questions, and the whole when completed 
was read over to said witness and by him, so above sworn, subscribed under 
oath before discharged; that to each said deposition I then attached my cer- 
tificate, stating that the same was subscribed and sworn to by the said wit- 
ness at the time and place in said writ mentioned. 

(s) C. E. Goodwin, 

(SEAL) Notary Public, 

McKenzie County, N. D. 

NOTE: If the officer designated to take the depositions has an official seal, 
his certificate must bear such seal; if he has no seal, a proper certificate of 
his official character, under seal, must accompany his return. 

APPENDIX Q. 

DEPARTMENT OF THE INTERIOR, 
BEFORE THE REGISTER AND RECEIVER, 

UNITED STATES LAND OFFICE. Serial No. 06789. 

Contest No. 234S. 
Filed Dickinson, N. D., 

September 26, 1911. September 26, 1911. 

Michael Sweeney.... J Contest of .. .homestead. . .Entry No 06789.., 

v. } dated July 5..., 1907, for the. . .EVaNW^i, 

Hans Schlosser ) Lots 1 and 2.., of Sec. ..30.., Twp. ..140 N... 

R. . . .106 W , Fifth Principal Meridian. 

NOTICE OF INTENTION TO TAKE DEPOSITIONS' ON ORAL 

EXAMINATION. 

To: T. H. Callihan, Attorney for Contestant, 
Medora, N. D.: 
You will take notice that the contestee in the above-entitled proceeding has 

this day filed an application to take the depositions of Herman Witz and 

Johan von Schmalz. . . . and various other witnesses on the 19th day of Oc- 



CONTEST PROCEDURE 07 



tober, 1911, between the hours of 10 o'clock a. m. and 5 o'clock p. m., of said 
day before Karl M. Ziegler, a clerk of court at his office in Het- 
tinger county of Adams..., State of North Dakota , a copy of which 

application is hereto attached, and you are notified that, unless you show 
good and sufficient reasons to the contrary, a commission will be issued on 
said application at the expiration of ten days from the service of this notice 
upon you, and said depositions will be taken at the time and place named 
herein' and said taking will be continued from day to day, if necessary, until 
completed and you will not thereafter be heard to question either the form or 
sufficiency of said application or the validitj- or effect of such commission. 

(s) V. H. Schwartz, 

Agent for Contestee. 

State of North Dakota 1 . 

County of Stark \ 5S - 

. ...V. H. Schwartz...., being first duly sworn, on his oath says: That on 
September 26, 1911, he served the above notice of intention to take deposi- 
tions, together with a copy of the application for commission in that behalf, 

upon T. H. Callihan, at Medora, N. D., his address of record, by registered 

letter containing true copies of said papers; and as proof thereof attaches 
hereto the postmaster's receipt for said letter. 

(s) V. H. Schwartz. 
Subscribed and sworn to before me this 26th day of September, 1911. 

(s) Jacob Weiss, 
(SEAL) Notary Public, 

Stark County, N. D. 

APPENDIX R. 

DEPARTMENT OF THE INTERIOR, 
BEFORE THE REGISTER AND RECEIVER, 

UNITED STATES LAND OFFICE. Serial No. 06789. 

Contest No. 2345. 
Filed Dickinson, N. D., 

September 26, 1911. September 26, 1911. 

Michael Sweeney ) Contest of .. .homestead. . .Entry No 06789.., 

v. > dated July 5..., 1907, for the. . .Ei / 4NWy 4 , 

Hans Schlosser ) Lots 1 and 2.., of Sec. ..30.., Twp. ..140 N.., 

R 106 W , Fifth Principal Meridian. 

AFFIDAVIT AND MOTION FOR COMMISSION TO TAKE DEPOSITIONS 
ON ORAL EXAMINATION. 

The undersigned, being duly sworn, on his oath says, that he is.... agent for 

the contestee in the above-entitled' proceeding; that the following persons 

are material witnesses for the contestee in said case and reside as stated, to- 

wit : .... Herman Witz Residence Hettinger, N. D ; Johan 

von Schmalz...., residence, Hettinger, N. D ; that each of said wit- 
nesses reside without the county in which hearing is to be had and 

by reason thereof can not be procured to attend the trial of said case before 
the Register and Receiver at the local Land Office; that due service of notice 
of contestee's intention to take such depositions was had upon the contestant 
herein on September 26, 1911, as more fully appears by the copy of such 
notice and return thereon, herewith filed. 

WHEREFORE, the undersigned, as agent for the contestee, moves that, 
after the expiration of ten days from said date of service, a commission issue 
to.... Karl M. Zeigler...., a.... clerk of court. .. .authorized to administer oaths 

in the county of Adams , State of.... North Dakota , commanding him 

to take the depositions of the above-named witnesses and such other witnesses 
as may be produced on behalf of the contestant or contestee herein, orally 

by question and answer, to be by the said Karl M. Zeigler. .. .reduced to 

writing and properly returned as by law required, at his office at Hettinger 

North Dakota, at 10 a. m., on. .. .October 19..., 1911, and from day to day 

thereafter until taken. 

(s) V. H. Schwartz. 

Subscribed and sworn to before me this 26th day of September, 1911. 

(s) Jacob Weiss, 

(SEAL) Notary Public, 

Stark County, N. D. 

ORDER— ALLOWANCE OF MOTION. 

The foregoing affidavit and motion being considered, and the undersigned 
being advised, the said motion is this 7th day of October, 1911, allowed and 
commission will issue. 

(s) W. A. Quinlan. . . ., Register. 

(s) .... J. G. McGuire , Receiver. 



58 CONTEST PROCEDURE 



APPENDIX S. 

DEPARTMENT OF THE INTERIOR, 
BEFORE THE REGISTER AND RECEIVER, 

UNITED STATES LAND OFFICE, Serial No. 06789. 

Contest No. 2345. 
Dickinson, N. D., 

October 7, 1911. 
Michael Sweeney.... ) Contest of .. .homestead. . .Entry No. .. .06789. ., 

v. >■ dated July 5..., 1907, for the. . .E%NW%, 

Hans Schlosser ) ■ Lots 1 and 2. ., of Sec. . .30. ., Twp. . .140 N. ., 

R 106 W Fifth Principal Meridian. 

COMMISSION TO TAKE DEPOSITIONS ON ORAL EXAMINATION. 

To Karl M. Zeigler, Clerk of Court, GREETING: 

KNOW YOU, That you are hereby vested with full power and authority to 
conduct the proceedings, take the testimony, and administer oaths to wit- 
nesses, at your office at. .. .Hettinger, N. D , on the 19th day of October, 

1911, at 10 a. m., and daily thereafter, as you shall from time to time said 
proceedings adjourn, and until the same is complete as to all witnesses then 
before you produced on behalf of either the contestant or the contestee in the 
above -entitled case; that you should administer an oath to each of said wit- 
nesses before testifying, that he will tell the truth, the whole truth, and 
nothing but the truth; and that you will cause all questions addresses to 
said witness by counsel' for either contestant or contestee, together with the 
answer to such question, to be written out as given, and that the whole thereof 
for each witness you will cause to be read over to said witness and have 
said witness subscribe and swear thereto in the usual manner before said 
witness is discharged; that you will also cause to be written out in the 
record, at the time made, such motions and objections as respective counsel 
may make; that you are authorized to issue subpoenas for such witnesses as 
may be required by contestant or contestee and deliver the same to said con- 
testant or contestee or their attorneys for service; that if any witness is duly 
subpoenaed at least five days prior to said hearing but fails to attend in 
pursuance of said subpoena, you will' make due return thereon; that when 
the testimony of all witnesses offered on behalf of the contestant and contestee 
shall have been taken you will attach thereto your certificate, stating that 
each said witness was duly sworn before testifying, that the testimony, ques- 
tion and answer, as written, was read over to him before he subscribed the 
same and that he thereupon subscribed the same at the time and place therein 
mentioned; the said depositions and certificates, together with this certificate, 
you will then seal up, indorse the title of this cause upon the envelope, and 
the whole return by mail or express with all possible dispatch, to be used 
on the trial of the above-entitled case now pending before us. 

(s) . . . .W. A. Quinlan. . . ., Register. 

(s) . . . . J. G. McGuire. . . ., Receiver. 

RETURN OF COMMISSION. 

According to the command of the within writ, I did on the. .. .19th. .. . 
day of ... .October. .. ., 1911, at 10 a. m., and daily thereafter until complete, 

at my office at. .. .Hettinger, N. D execute the power and authority upon 

me conferred; in this, that I then and there called said case and that the 
following persons, to-wit: ....Herman Witz, Johan von Schmalz, Patrick 

McCleary and Clancy O'Rourke , then and there appeared as witnesses 

before me in said cause and were by me each first duly sworn to tell the 
truth, the whole truth, and nothing but the truth, in said action, and each of 
said witnesses, being so sworn, was examined and testified as in his said 
hereto-attached deposition does appear, and that all objections and motions 
made on behalf of contestant or contestee are set out in said depositions; 
that the within depositions are all the questions and answers, motions, and 
objections made at said hearing, and that I caused the same to be written out, 
and the whole when completed as to each witnesrs was read over to such 
witness and by him so above sworn, was subscribed under oath before dis- 
charged; that to each of said depositions I then attached my certificate, stat- 
ing that the same was subscribed and sworn to by the said witness at the 
time and place above mentioned. 

(s) Karl M. Zeigler, 

(SEAL) Clerk of Court, 

Adams County, North Dakota. 



CONTEST PROCEDURE 59 



APPENDIX T. 

SUBPOENA. 

The United States of America, To. .. .Herman Witz, Bucyrus, N. D., and Pat- 
rick McCleary, Haynes, N. D. : 
You are hereby commanded to appear before. .. .Karl M. Zeigler, Clerk of 
Court of Adams county...., at. .his. .office, in ....Hettinger..., in the county 
of .. .Adams. . ., State (or Territory) of.... North Dakota..., at the hour of 

..10 a. m., on the. . .19th. . . day of .. .October, 1911 to testify in behalf of 

..Hans Schlosser at a hearing, to be then and there held, wherein 

. .Michael' Sweeney is contestant and Hans .Schlosser is contestee. . ., and here- 
in fail not at your peril. 

Issued this . . . 8th . . . day of . . . October, 1911 

(s)....W. A. Quinlan..., 
Register, United States Land Office, 
Dickinson, N. D. 

County of Adams ) 

State of North Dakota f ss - 

I, ....John H. Wilson being first duly sworn, upon my oath say, that 

I served the above subpoena in the county of ... .Adams. .. ., in the State (or 

Territory) of North Dakota on the. . .9th. . .day of .. .October, 1911 , by 

then and there delivering a true copy thereof each to the the within-named 
witnesss, to-wit: ....Herman Witz and Patrick McCleary.... 

(s) John H. Wilson. 

Subscribed and sworn to before the undersigned this. .. .9th. .. .day of 

October, 1911 

$s) Frank J. Osborne, 
(SEAL) Notary Public, 

Adams County, North Dakota. 

APPENDIX U. 

DEPARTMENT OF THE INTERIOR, 
UNITED STATES LAND OFFICE, 

Dickinson, North Dakota, 

September 15, 1911. ■ 
Ole N. Olson, 

Sioux Falls, Iowa (record address). 
Mott, N. D. (nearest land). 
Sir: By authority of General' Land Office letter "P," dated. .. .September 12, 

1911 , you are hereby notified that a special agent of that office has filed 

the following charges against the validity of your. .. .homestead. .. .e'" try, No. 
..012345.., made. . .October 3, 1909..., for. ..SW% Sec. 28, T. 134 N., R. 92 W., 
5th Principal Meridian ....... 

1. That said entry was not made in good faith for a home but for the 
purpose of sale and speculation. 

2. That said entry was not made for the use and benefit of the entryman, 
but for the use and benefit of John Johnson. 

3. That at the date of making entry said entryman was not qualified under 
the homestead laws, he being the owner of more than 160 acres, to wit: 240 
acres of land in the United States. 

You are notified that if you fail to file in this office, within thirty days of 
date of service of this notice, a written or printed answer, under oath, deny- 
ing each of said charges, or showing a state of facts rendering said charges 
immaterial, and applying for a hearing to determine the truth of said charges 
and answer, or if you fail to appear at a hearing applied for, your said above 
entry or claim will be forthwith reported to the Commissioner of the General 
Land Office for rejection or cancellation. 

Respectfully, 

(s) . . . .W. A. Quinlan register. 

Answer should be made in duplicate. 



APR 15 1912 



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